the Pennsylvania judges did not examine these points because they were unnecessary to be decided on those trials, because great violence and force had been used by the prisoners in person-if all these things be true, I ask what authority ought to be attached to the opinion of the supreme court relating to these points?

I have said, that some parts of that opinion relied on by the counsel on the other side are, according to their construction, utterly irreconcilable to other parts of it. There is a generality of expression whenever you speak of an assemblage, which shews the bent of your mind on the subject to be, to consider them as armed and in a situation to use force, though you mention neither arms nor actual force. It is the generality of these expressions which has enabled the gentlemen to advance such extraordinary arguments and doctrines: for when you speak of an assemblage you do not say how many persons must compose it, or whether it must have a warlike appearance or

not.

But notwithstanding these general expressions they may be controlled by other parts of the opinion and explained by the opinions given by the judges before on the same subject. Judges Chase and Iredell and yourself have all concurred in recognising the just caution of the convention in establishing in the constitution the requisition of proof of the same overt act by two witnesses at least. In explaining this provision, you have supposed, that it was contemplated not as an ordinary but as an extraordinary act. You have thought that this extraordinary act could not be done in secret, but in the face of the world; that without this proof of the open notorious deed, the evidence of a thousand witnesses proving declarations or confessions would be insufficient. Yet if the crime consisted in the intention, and if any sort of an assemblage, such as is common to all men, would do, your reasoning would be incorrect, and the constitutional provision would produce no security whatever.

It is alleged, that the supreme court has said, that actual force is not necessary to constitute this crime. We are also reminded of the concessions of Lewis and Dallas, that force was unnecessary. To this allegation and to these supposed concessions, I will oppose the act of congress founded on the constitution, and the opinions of the judges in explanation thereof, as well as other parts of the same opinion of the supreme court. The act of congress, page 100 of 1st vol. Laws of the United States, declares, "that if any person or persons owing allegiance to the United States shall levy war against them, or shall adhere," &c. " and shall be thereof convicted, en confession in open court or on the testimony of two witnesses to the same overt

act of the treason, whereof he or they shall stand indicted, such person shall be adjudged guilty, &c." This overt act of treason in levying war must be in itself war. It cannot be perpetrated in secret. The two witnesses must not only prove the act, but the quality of the act. The act in which the treason shall consist must appear not to be an ordinary but an extraordinary act, having the nature, essence and character of war. The opinion of judge Chase has been already read more than once, wherein he declares, that" some actual force or violence must be used in pursuance of such design to levy war." In your own opinion delivered on the examination of colonel Burr, you declared, that" war can only be levied by the employment of actual force;" and you also said, that "treason may be machinated in secret, but it can be perpetrated only in open day and in the eye of the world. Testimony of a fact which in its own nature is so notorious ought to be unequivocal."

The language of the supreme court in some other parts of that opinion, which has been so often and so exultingly referred to by gentlemen in support of their construction, is equally explicit in favour of our doctrine: "To constitute that specific crime for which the prisoners now before the court have been committed, war must be actually levied against the United States.” This opinion cites with decided approbation the opinions of the judges of the United States which had declared force to be essential to the consummation of treason. It states, that "the opinions of judges Patterson and Iredell contemplate the actual employment of force;" in which sentiment it adds that "judge Chase is more explicit."

Judge Iredell expresses himself in terms equally clear in the trial of Fries, p. 166. Addressing the jury he says, “But on the occasion now before you, it is not attempted by any construction or interpretation, that any thing should be denominated treason, that is not precisely and plainly within the constitution. No treason can be committed except war has actually been levied against the United States.”

So that four judges have each of them separately declared that actual force is necessary to constitute treason; and these declarations or opinions (three of them having given their opinions before the supreme court) have been approved of by the supreme court in that very judicial sentence on which the prosecutors rely: and the supreme court collectively and judge Iredell separately declares, that in order to constitute the specific crime of treason, war must be actually levied against the United States. War must be actually levied, force must be actually employed. What do these expressions import? The word actual must be used as opposed to constructive. Actual

Levying of war must be used as opposed to constructive levying of war and actual force must in like manner be opposed to constructive force. Actual must mean real. They should therefore prove that war has been really levied and force in fact used against the United States.

I had forgotten another part of judge Chase's opinion or rather that of the circuit court in which he presided to which the supreme court refers when it says, that he was more explicit, which confirms the argument which I have been endeavouring to support: "If a body of people conspire and meditate to resist or oppose the execution of any statute of the Unit ed States, they are only guilty of a high misdemeanor; but they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war." Again: "A combination or conspiracy to levy war against the United States is not treason unless combined with an attempt to carry such combination or conspiracy into execution." Immediately after which he says, that some actual force must be used. So that it is perfectly plain on a careful examination, that the court thought that some degree of force must be used before the crime is complete.

The case in Kelyng p. 78, 79. where the four special verdicts were found against several persons prosecuted for treason, shews decisively the necessity of potential if not of actual force, and is completely exclusive of the idea, that a mere naked assemblage without arms or force constitutes treason. Acts of violence were committed by those persons, but all were not equally active, and some were merely present without doing any thing. As to those who committed no actual violence, who used no force, they were acquitted; but the party consisted of a great number of persons, had arms, pulled down some houses, broke opena prison and let out several prisoners, and were proceeding to do more mischief when they were suppressed. The court was unanimous, that "as to Green in the first special verdict, and Bedel in the third special verdict, the verdict was not full enough to be judged treason as to them, bocause it only found that they were present, but found no act of force committed by them, and did not find that they were aiding or assisting to the rest. Yet Green is found to have been among them when they were doing the act of war, and throwing up his hat and hallooing with a staff in his hand; and Bedel being pursued by one of the soldiers called out to the rest to face about and not to leave him.

CHIEF JUSTICE.-They were acquitted because they might not have belonged to the party. The court added: "It is possible one may be present among such a rabble only out of cu

riosity to see; and whether they were aiding or assisting is matter of fact, which ought to be expressly found by the jury."

Mr. BOTTS.-They were acquitted on the principle decided by yourself, that "war can only be levied by the employment of actual force." You best know the opinion of the supreme court, and you have explained every part which remained doubtful, and particularly, that it thought the actual employment of force necessary to constitute treason; that actual force or what is equal to it was necessary in all cases for this purpose: for we admit, that from a part of the opinion of Chase and Iredell, potential force was sufficient. What was the case supposed by Mr. Hay? That ten thousand unarmed men march to take possession of the capitol of the United States; the constituted authorities are intimidated; the president and congress fly before them; the public offices are surrendered, and the government abandoned. This would be potential but not actual force. Actual must be distinguished from constructive force. Mr. Hay contends properly, that this would be war. If it would, the opinion of the supreme court is wrong, and the gentleman must resist the authority of the chief justice as well as of the supreme court.

But the gentleman who spoke first for the prosecution (Mr. Hay) says, that certain qualifications were necessary to the opinion of the supreme court. If the definition which he has given us be sufficient, the opinion of the supreme court is incorrect. He thinks that it ought to be added to its opinion, that the persons assembled for a treasonable purpose meant not to disperse; that if they assembled and did disperse, then they were not guilty of an act of war although they might reassemble afterwards and accomplish their views. And Mr. Mac Rae says, that another qualification is necessary: that it should not be a lawful assembly; that if it be a warlike, it should be an unlawful assembly. When gentlemen look at some expressions they should look at the other paragraphs to explain them. Compare the whole together, and you will find that the generality of the expression will meet and fit every part precisely. "Inlistments do not make war." "Troops must be embodied." A bare assemblage is not sufficient; but they must be troops. That they should assemble together as individuals is not sufficient. That they should do so after inlistment is not sufficient. They must be marched, and they must be organized before they can be said to be embodied as troops. Apply this then to the generality of the expressions relating to the assemblage, and you will find them precisely suited to convey the correct idea intended to be communicated: an assemblage of

men not merely inlisted, but armed and organized as troops prepared to levy war.

It is true, that the worthy gentleman who spoke yesterday has with great ingenuity discovered and informed us, that every act of war did not mean war, but a soldier; that the constitution by the words "levying war" did not mean "making war" as it is generally understood, but making a soldier; that the meaning of the constitution in using the word "war" was a soldier. I do not wish to misrepresent what the gentleman said, but he certainly took up at least ten minutes on that single point; and the whole scope of his argument during that time. was merely to shew, and he did demonstrate with great ingenuity, that war was not war but a soldier: so that levying of one soldier was levying war. If this argument be logical, there can be no question that war is not war, but logically speaking merely a soldier.

Permit me to refer to another dictionary which I presume is as respectable an authority as that which the gentleman produced. [Here Mr. Botts read a passage from Ash's dictionary where among several other significations the verb "lever" means as applied to war "raise" or "make."]

So that "levy" means to raise or make; levy war means to make war. According to this dictionary to levy war means to make war; precisely as it is universally understood, and as common sense would have told us. That the convention who framed the constitution did not mean levying a soldier when they speak of levying war is evident. If they had meant so, they would in plain common words have pointed out the manifest distinction between levying a soldier and levying war. It is perfectly manifest, that war cannot be levied till the war exist. The moment it existed it is levied, but it cannot possibly be levied till it does exist.

I did not think that it would be necessary under this government to enter into a discussion of the danger of constructive treason. I thought that from the experience of the British nation there was such a strong detestation of the doctrine of constructive treason, that no person in this country could be found willing under any circumstances to approbate them; but that gentlemen of such respectable talents and such political principles as the gentlemen on the other side should advocate them is amusing, but although almost incredible is true. On this subject I will only trouble you by a reference to the opinions of the supreme court, your own opinion on the motion to commit the accused, and the sentiments of the celebrated author of the Spirit of Laws.