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to be, in construction of law, high treason within the clause of levying war.
The cases put by Foster of constructive levying of war all contain, as a material ingredient, the actual employment of force. After going through this branch of his subject, he proceeds to state the law in a case of actual levying of war, that is, where the war is intended directly against the government.
He says, (s. 9,) “ An assembly armed and arrayed in a warlike manner for a treasonable purpose is bellum levatum, though not bellum percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king's subjects under a French commission, France being then at war with us, was held to be adhering to the king's enemies, though no other act of hostility be proved."
“An assembly armed and arrayed in a warlike manner for any treasonable purpose ” is certainly in a state of force ; in a condition to execute the treason for which they assembled. The words “ enlisting and marching,” which are overt acts of levying war, do, in the arrangement of the sentence, also imply a state of force, though that state is not expressed in terms; for the succeeding words, which state a particular event as not having happened, prove that event to have been the next circumstance to those which had happened ; they are, “ without coming to a battle or action.” If men be enlisted and march, (that is, if they march prepared for battle, or in a condition for action, for marching is a technical term applied to the movement of a military corps,) it is an overt act of levying war, though they do not come to a battle or action. This exposition is rendered the stronger by what seems to be put in the same sentence as a parallel case with respect to adhering to an enemy. It is cruising under a commission from an enemy, without committing any other act of hostility. Cruising is the act of sailing in warlike form, and in a condition to assail those of whom the cruiser is in quest.
This exposition, which seems to be that intended by Judge Foster, is rendered the more certain by a reference to the case in the State Trials from which the extracts are taken. The words used by the chief justice are, “ When men form themselves into a body, and march rank and file with weapons offensive and defensive, this is levying of war with open force, if the design be public.” Mr. Phipps, the counsel for the prisoner, afterwards observed, “ Intending to levy war is not treason, unless a war be actually levied.” To this the chief justice answered, “ Is it not actually levying of war, if they actually provide arms and levy men, and in a warlike manner set out and cruise, and come with a design to destroy our ships ? " Mr. Phipps still insisted, “ It would not be an actual levying of war unless they committed some act of hostility.” “ Yes, indeed,” said the chief justice, “ the going on board, and being in a posture to attack the king's ships.” Mr. Baron Powis added, “ But for you to say that because they did not actually fight it is not a levying of war, is it not plain what they did intend? That they came with that intention, that they came in that posture, that they came armed, and had guns and blunderbusses, and surrounded the ship twice; they came with an armed force, that is a strong evidence of the design."
The point insisted on by counsel in the case of Vaughan, as in this case, was, that war could not be levied without actual fighting. In this the counsel was very properly overruled; but it is apparent that the judges proceeded entirely on the idea that a warlike posture was indispensable to the fact of levying war.
Judge Foster proceeds to give other instances of levying war. “ Attacking the king's forces in opposition to his authority, upon a march, or in quarters, is levying war.” “ 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.”
The whole doctrine of Judge Foster on this subject seems to demonstrate a clear opinion that a state of force and violence, a posture of war, must exist, to constitute technically, as well as really, the fact of levying war.
Judge Blackstone seems to concur with his predecessors. Speaking of levying war, he says, “This may be done by taking arms not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. For the law does not, neither can it, permit any private man or set of men to intersere forcibly in matters of such high importance.”
He proceeds to give examples of levying war which show that he contemplated actual force as a necessary ingredient in the composition of this crime.
It would seem, then, from the English authorities, that the words “ levying war” have not received a technical, different from their natural meaning, so far as respects the character of the assemblage of men which may constitute the fact. It must be a warliké assemblage, carrying the appearance of force, anda in a situation to practise hostility.
Several judges of the United States have given opinions at their circuits on this subject, all of which deserve and will receive the particular attention of this court.
In his charge to the grand jury, when John Fries was indicted in consequence of a forcible opposition to the direct tax, Judge Iredell is understood to have said, “I think I am warranted in saying, that, if, in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the congress of the United States altogether, any forcible opposition calculated to carry that intention into effect was a levying of war against the United States, and of course an act of treason.” To levy war, then, according to this opinion of Judge Iredell, required the actual exertion of force.
Judge Paterson, in his opinions delivered in two different cases, seems not to differ from Judge Iredell. He does not indeed precisely state the employment of force as necessary to constitute a levying of war, but in giving his opinion in cases in
which force was actually employed, he considers the crime in one case as dependent on the intention, and in the other case he says, “ Combining these facts with this design,” (that is, combining actual force with a treasonable design, “the crime is high treason.”
Judge Peters has also indicated the opinion that force was necessary to constitute the crime of levying war.
Judge Chase has been particularly clear and explicit. In an opinion which he appears to have prepared on great consideration he says, “ The court are of opinion, if a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, that they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persont's is wholly immaterial.
“The court are of opinion 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 that it is altogether immaterial whether the force used be sufficient to effectuate the object. Any force connected with the intention will constitute the crime of levying war."
In various parts of the opinion delivered by Judge Chase, in the case of Fries, the same sentiments are to be fouud. It is to be observed that these judges are not content that troops should be assembled in a condition to employ force; according to them some degree of force must have been actually employed.
The judges of the United States, then, so far as their opinions have been quoted, seem to have required still more to constitute the fact of levying war than has been required by the English books. Our judges seem to have required the actual exercise of force, the actual employment of some degree of violence. This, however, may be, and probably is, because in the cases in which their opinions were given the design not having been to overturn the government, but to resist the execution of a law, such an assemblage would be sufficient for the purpose, as to require the actual employment of force to render the object unequivocal.
But it is said all these authorities have been overruled by the decision of the supreme court in the case of the United States against Swartwout and Bollman.
If the supreme court have, indeed, extended the doctrine of treason further than it has heretofore been carried by the judges of England or of this country, their decision would be submitted to. At least this court could go no further than to endeavor again to bring the point directly before them. It would, however, be expected that an opinion which is to overrule all former precedents, and establish a principle never before recognized, should be ex ed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established. Had the intention been entertained to make so material a change in this respect, the court ought to have expressly declared that any assemblage of men whatever, who had formed a treasonable design, whether in force or not, whether in a condition to attempt the design or not, whether attended with warlike appearances or not, constitutes the fact of levying war. Yet no declaration to this amount is made. Not an expression of the kind is to be found in the opinion of the supreme court. The foundation on which this argument rests is the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force, and some passages which show that the question respecting the nature of the assemblage was not in the mind of the court when the opinion was drawn, which passages are mingled with others which at least show that there was no intention to depart from the course of the precedents in cases of treason by levying war.
Every opinion, to be correctly understood, ought to be con