the quantum of the force employed neither lessens nor increases the crime; whether by one hundred or one thousand persons, is wholly immaterial. The court are of opinion," continued judge Chase on that occasion, "that 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; some actual force or violence must be used in pursuance of such design to levy war, but it is altogether immaterial whether the force used is sufficient to effectuate the object; any force, connected with the intention, will constitute the crime of levying war." Judge Chase is explicitly of opinion, then, that some actual force or violence must be used. How can this be reconciled with their construction, that a bare" assemblage of men, met for a treasonable purpose, is sufficient to constitute the crime of levying war?" This comparison is in plain language, and cannot be misunderstood. It proves most clearly the fallacy of the doctrine for which gentlemen contend. But I may be told, that judge Chase was present on the bench when the supreme court decided, that "the fact of levying war may be committed by an assemblage of men, for a purpose treasonable in itself," and that " 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," and from whence it may be contended, that he assented to these short sentences. Sir, I derive a contrary argument from it. Unless he had retained his former opinionunless he had believed that the whole tenor of the opinion of the supreme court was consistent with that former opinion, he would have dissented from it, and avowed his disapprobation of a decision, not recognising the rectitude of that former opinion. He could not mistake his own former opinion; and his concur. rence in the sentence of the supreme court, approving it, clearly evinces, that he still entertained the same sentiments. This is therefore, an argument in our favour, that all the judges would have given a contradiction to opinions already given in such explicit terms, if they had disapproved of them. If judge Chase had not adhered to his opinion, he certainly would have said so, and not have sanctioned a decision which would not have taken place without his concurrence.

According to the opinions of those three judges, an assemblage without force could not be guilty of the crime of treason in levying war. Suppose then, that the judges had used all those expressions in the sense on which the counsel for the United States so earnestly rely, and had changed and disa

vowed 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 theni 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 authority, 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 dicta, 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 discri minating 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 re gard 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