country. Knowing its destructive effects in other countries, they should avert from themselves so dreadful an evil. They have expressly and guardedly done so in their constitution.

It was stated by one of the gentlemen on the other side, that the principal ingredient of the crime of levying war consisted in the intention; and that a small matter, a trivial deed, would be sufficient to constitute an overt act. Here again, I express my dissent from that doctrine. There must be some public act of violence, some act of public hostility, or what I say is tantamount: some posture of offence, ready to act with violence, not mere declarations unaccompanied by acts. I protest against this doctrine, and again repeat, that levying of war does not consist principally of intention, but of open unequivocal acts of war. I will not confine it to acts of violence by individuals, such as murdering a man, beating his person; but acts of force and violence carried on by the assembly or multitude themselves.

On this question of levying war, the opinion of the supreme court has been referred to; and particular sentences have been selected, as having a decisive effect, in favour of the prosecution. Suffer me to say, that the jurisdiction of the supreme court is confined to civil cases; that it has no jurisdiction over this case. The supreme court has decided, that it has no jurisdiction in any criminal cases whatsoever, with the single exception, of writs of habeas corpus. Its decisions are not of that authoritative kind in relation to inferior courts, which the decisions of superior courts, having the right of revision, must always be. This is a substantive independent court; whose decrees or judgments in criminal cases cannot be reviewed by the supreme court; but I will admit, that any opinion or dictum from so high an authority ought to be respected. I mention this to shew, that the decisions of the supreme court, in similar cases, however entitled to respect, have not a binding force to control inferior courts. But let us examine the opinion given by the supreme court in the cases of Bollman and Swartwout. Let us see whether it be not perfectly consistent with the doctrine for which we contend. I hope the gentlemen will forgive me for telling them, that it does not lay down the doctrine precisely and conclusively, which they allege it does. When deliberately and duly examined, it will be found to be far different from what they have represented it to be. That opinion professes one point: that without an assemblage of men, there can be no war; and because it has decided, that there must be an assemblage of men to constitute war, gentlemen contend that it was its intention to say, that it is a levying of war. But surely it does not follow, because it has said, that an assemblage is necessary, that it is all that is necessary. An assemblage of men may very well be one essential in

gredient, without constituting the whole act of levying war. When the case of Swartwout was before your Honour and the rest of the court, his counsel insisted, that there was not evidence to charge him with having committed this crime; and in order to make this position out, they did not find it nece: sary to discuss that doctrine or branch of high treason. There was no proof of any assemblage of men; nor was it necessary to decide the effect of such an assemblage. It was indeed stated, that great bodies of men from NewYork and other northern parts were engaging and on the way proceeding to New-Orleans. It was anxiously and pressingly asked by the prisoners' counsel, “shew us the time, the place, the manner, when, where, and in which, these acts of levying war have been committed." The counsel for the prosecution could not shew any assemblage of men any where. This was sufficient for the counsel of Swartwout; and that the court did confine itself to that point of an assemblage or its effect, will appear from a critical examination of the opinion itself; and if this opinion be considered with reference to a few specific ideas, I think this is the true construction. First, if it be considered with reference to the situation of those men then before the court, or secondly, with regard to the subject matter, we must be satisfied the question of an assemblage was or was not made. We ought not to lay hold of any vague expressions to make the court to appearance decide that to be law, which has never been thought to be law. As I have just observed, proof of the assemblage of men who had levied the war was demanded, and could not be produced. The court delivered its opinion in reference to the statement and proof, which manifested at most no more than an incomplete state of insurrection. [Here Mr. Lee read the ninth section of the opinion of the supreme court in the cases of Bollman and Swartwout; which see quoted before. He then read the sixteenth section &c. as follows.] To complete the crime of levying war, against the United States, there must be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New-Orleans by force would have been unquestionably a design, which, if carried into execution, would have been treason; and the assemblage of a body of men, for the purpose of carrying it into execution, would amount to levying of war against the United States; but no conspiracy for this object, no inlisting of men to effect it, would be an actual levying of war." It is not going on any new idea of treason, but means to decide, that to be treason, which had been adjudged to be so before; and which the supreme court itself declares it is deciding according to the doctrine of treason decided by judges Patterson, Chase, Iredell and others. It said it

was determining no new doctrine of treason. That this is the candid construction will appear by considering all its parts together. But the two next sections ought to be deemed decisive on this point." In conformity (it says) with the principes now laid down, have been the decisions heretofore made, by the judges of the United States." "The opinions given by judge Patterson and judge Iredell, in cases before them, imply an actual assembling of men; though they rather designed to remark on the purpose to which the force was to be applied, than on the nature of the force itself. Their opinions however contemplate the actual employment of force." "Judge Chase on the trial of Fries was more explicit." [Here Mr. Lee read the opinion of judge Chase, in the next section; which also see quoted before.] An examination of the opinions of these judges referred to by the supreme court will disprove the construction of the counsel for the United States and confirm that for which I contend. In the case of Mitchell decided in the circuit court of Pennsylvania, reported in 2d Dallas p. 348. judge Patterson in his charge to the jury, having stated what appeared to be the general object of the insurrection, and the conduct of the insurgents, speaks in relation to the prisoner thus: "the second question to be considered is, how far was the prisoner traitorously connected with the insurgents? It is proved by four witnesses that he was at Couch's fort, at a great distance from his own home; and that he was armed. One witness proves positively that he was at the burning of general Neville's house; and another says, it runs in his head, that he also saw the prisoner there." This is conformable to the opinion of the judges of the supreme court. Here was really an act of war, not only an assemblage; but they were armed. The prisoner was armed, to make a bonfire of the house of the officer appointed by the government to collect the excise: an act of treason. He was at the burning of general Neville's house. He was also one of the assemblage at Couch's fort. He was also armed at Braddock's field. From the position which gentlemen have taken with respect to treason, they suppose, that the opinion of the supreme court was, that a mere assemblage, manifesting a treasonable disposition, but without force and without arms, is a levying of war. But the assemblage here, on which the opinion of judge Patterson sanctioned by the supreme court, was founded, used actual force; and they laid down the law to be incontrovertible, that where an assemblage commits an act of flagrant violence to obstruct the legitimate operations of the government, they levy war. Here the assembly marched and committed acts of violence against officers of the government for the purpose of deterring them from doing their duty. It was in relation to their excise offices, that these

officers became obnoxious to the insurgents. It was because he was an officer of the excise, that general Neville's house was destroved.

With respect to Fries's trial, there was an actual rebellion against the government: direct hostility and resistance to its legitimate authority. Here I think it not improper to advert to part of the argument of Mr. Sitgreaves, one of the counsel for the prosecution against Fries, which was acquiesced in, because not disapproved of by the court. Speaking of the treason of levying war against the United States in his address to the jury, he says, it must be war waged against the United States. This is an important distinction. A large assemblage of people may come together, in whatever numbers, however they may be armed or arrayed, or whatever degree of violence they may commit, yet that alone would not constitute treason. The treason must be known. It must be for a public and not a private revenge. It must be avowedly levying war against the United States. If people assemble in this hostile manner, only to gratify revenge, or any other purpose independent of war against the United States, it will only amount to a riot." Here is a candid exposi tion of the law: that however armed and arrayed, and however numerous an assemblage may be, they must avowedly levy war against the United States, or they will not be guilty of treason. It is not a mere assemblage of men with secret intentions to commit war that will, with or without arms, constitute treason. It must be an assemblage of men with public and avowed intentions to make war upon the United States, with force either actually used or ready to be used. Their object must be known; their intentions avowed. If a parcel of people met together, however great their number, act so as to keep their intentions secret, there is not a single quality of war in their conduct unless they proceed to actual hostility.

We insist on this principle: that arms are necessary in all the authorities. I do not say military weapons; because a multitude with other weapons may supply the want of regular arms. But one or the other is indispensably necessary. Judge Chase, though explicit in one part of his opinion, that some actual force or violence must be used in pursuance of the design to levy war," yet is supposed by the counsel for the United States, in another part to contradict this opinion by declaring, that arms are unnecessary. But the gentleman is mistaken. His opinion is perfectly consistent. What does he say? That" military weapons, (as guns and swords mentioned in the indictment) are not necessary, to make such insurrection or rising amount to levying of war;" because numbers may supply the want of military weapons; and other instruments may effect the intended mischief. The legal

VOL. II.

2 I

guilt of levying war may be incurred without the use of military weapons or military array." Judge Chase does not go any farther than judge Patterson; and you must take all his opinion together, and then there is no contradiction. If they have no military weapons, they must have other arms, and they must be in such a multitude, as to be able to effect the mischief without military weapons, or they must use some force or violence. He does not pretend to say, that there should be less force actual or potential than judge Patterson does. In one part of the opinion of the supreme court, a distinction is made between a conspiracy to levy war, and levying war; which corresponds precisely in substance with the distinction taken by judge Chase: "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. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed.” So far has this principle been carried" that it has been determined, that actual inlistment of men to serve against the government does not amount to levying war." If there be no act which publicly announces the intent of the conspiracy, it remains still a conspiracy: for it is very obvious from the whole opinion, candidly interpreted, that the supreme court meant to say, that such an act is necessary to convert a conspiracy into a treason; although gentlemen insist that that court is very explicit in saying what it never intended to say. They avail themselves with great dexterity of these words in the opinion: "On the contrary if war be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." All those who perform any part-any part in what? Not in the conspiracy certainly, which it had declared to be insufficient, but in the actual war. Does the court mean to say, that a man should be considered as a traitor who performs no part? The expression, perform any part, brings to our minds the idea, that something should be done. The whole sentence should be taken together; and it will be then plain. Those words "perform any part" &c. apply to the force previously spoken of: "if a body of men be actually assembled for the purpose of effecting by force, a treasonable purpose." To make it rational, it must mean, that those who perform any part of the purpose intended to be effected by force-those who do the least act of force are to be con