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sidered with a view to the case in which it was delivered. In the case of the United States against Bollman and Swartwout, there was no evidence that even two men had ever met for the purpose of executing the plan in which those persons were charged with having participated. It was therefore sufficient for the court to say that unless men were assembled war could not be levied. That case was decided by this declaration. The court might, indeed, have defined the species of assemblage which would amount to levying of war; but as this opinion was not a treatise on treason, but a decision of a particular case, expressions of doubtful import should be construed in reference to the case itself; and the mere omission to state that a particular circumstance was necessary to the consummation of the crime ought not to be construed into a declaration that the circumstance was unimportant. General expressions ought not to be considered as overruling settled principleshout a direct declaration to that effect. After these prelimuary observations the court will proceed to examine the opinion which has occasioned them.
The first expression in it bearing on the present question is, “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.”
Although it is not expressly stated that the assemblage of men, for the purpose of carrying into operation the treasonable intent which will amount to levying war, must be an assemblage in force, yet it is fairly to be inferred from the context, and nothing like dispensing with force appears in this paragraph. The expressions are, “To constitute the crime, war must be actually levied.” A conspiracy to levy war is spoken of as “a
conspiracy to subvert by force the government of our country.” Speaking in general terms of an assemblage of men for this or for any other purpose, a person would naturally be understood as speaking of an assemblage in some degree adapted to the purpose. An assemblage to subvert by force the government of our country, and amounting to a levying of war, should be an assemblage in force.
In a subsequent paragraph the court says, “It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled in order to effect by force a treasonable purpose, all those who perform any part, however minute, &c., and who are actually leagued in the general conspiracy, are traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."
The observations made on the preceding paragraph apply to this. “A bod f men actually assembled, in order to effect by force a treasonable purpose," must be a body assembled with such appearance of force as would warrant the opinion that they were assembled for the particular purpose ; an assemblage to constitute an actual levying of war should be an assemblage with such appearance of force as would justify the opinion that they met for the purpose.
This explanation, which is believed to be the natural, certainly not a strained explanation of the words, derives some additional aid from the terms in which the paragraph last quoted commences: “ It is not the intention of the court to say that no individual can be guilty of treason who has not appeared in arms against his country.” These words seem to obviate an inference which might otherwise have been drawn from the preceding paragraph. They indicate that in the mind of the court the assemblage stated in that paragraph was an assemblage in arms; that the individuals who composed it had appeared in arms against their country ; that is, in other words, that the assemblage was a military, a warlike assemblage.
The succeeding paragraph in the opinion relates to a conspiracy, and serves to show that force and violence were in the mind of the court, and that there was no idea of extending the crime of treason by construction beyond the constitutional definition which had been given it.
Returning to the case actually before the court, it is said, “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."
Now what could reasonably be said to be an assemblage of a body of men for the purpose of overturning the government of the United States in New Orleans by force ? Certainly an assemblage in force ; an assemblage prepared and intending to act with force; a military assemblage.
The decisions theretofore made by the judge of the United States are then declared to be in conformity the principles laid down by the supreme court. Is this declaration compatible with the idea of departing from those opinions on a point within the contemplation of the court? The opinions of Judge Paterson and Judge Iredell are said to “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." This observation certainly indicates that the necessity of an assemblage of men was the particular point the court meant to establish, and that the idea of force was never separated from this assemblage.
The opinion of Judge Chase is next quoted with approbation. This opinion in terms requires the employment of force.
After stating the verbal communications said to have been made by Mr. Swartwout to General Wilkinson, the court says, “If these words import that the government of New Orleans was to be revolutionized by force, although merely as a step to or a mean of executing some greater projects, the design was unquestionably treasonable, and any assemblage of men for that purpose would amount to a levying of war.”
The words " any assemblage of men,” if construed to affirm that any two or three of the conspirators who might be found together, after this plan had been formed, would be the act of levying war, would certainly be misconstrued. The sense of the expressions, “any assemblage of men,” is restricted by the words " for that purpose.” Now could it be in the contemplation of the court that a body of men would assemble, for the purpose of revolutionizing New Orleans by force, who should not themselves be in force ?
After noticing some difference of opinion among the judges respecting the import of the words said to have been used by Mr. Swartwout, the court proceeds to observe: “But whether this treasonable intention be really imputable to the plan or not, it is admitted that it must have been carried into execution by an open assemblage for that purpose, previous to the arrest of the prisoner, in order to consummate the crime as to him."
Could the court have conceived “ an open assemblage " " for the purpose of overturning the government of New Orleans by force” “ to be only equivalent to a secret, furtive assemblage without the appearance of force ? ”
After quoting the words of Mr. Swartwout from the affidavit, in which it was stated that Mr. Burr was levying an army of seven thousand men, and observing that the treason to be inferred from these words would depend on the intention with which it was levied, and on the progress which had been made in levying it, the court say, “The question, then, is, whether this evidence proves Colonel Burr to have advanced so far in levying an army as actually to have assembled them.”
Actually to assemble an army of seven thousand men is unquestionably to place those who are so assembled in a state of open force.
But as the mode of expression used in this passage might be misconstrued, so far as to countenance the opinion that it would be necessary to assemble the whole army in order to constitute the fact of levying war, the court proceeds to say, " It is argued, that, since it cannot be necessary that the whole
seven thousand men should have assembled, their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime.
“ This position is correct with some qualification. It cannot be necessary that the whole army should assemble, and that the various parts which are to compose it should have combined. But it is necessary there should be an actual assemblage ; and therefore the evidence should make the fact unequivocal.
“ The travelling of individuals to the place of rendezvous would, perhaps, not be sufficient. This would be an equivocal act, and has no warlike appearance. The meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage.”
The position here stated by the counsel for the prosecution is, that the army “commencing its march by detachments to the place of rendezvous (that is, of the army) must be sufficient to constitute the crime.”
This position is not admitted by the court to be universally correct. It is said to be “ correct with some qualification." What is that qualification ?
“ The travelling of individuals to the place of rendezvous” (and by this term is not to be understood one individual by himself, but several individuals, either separately or together, but not in military form) “would, perhaps, not be sufficient.” Why not sufficient? Because, says the court, “this would be an equivocal act, and has no warlike appearance." The act, then, should be unequivocal and should have a warlike appearance. It must exhibit, in the words of Sir Matthew Hale, speciem belli, the appearance of war...
This construction is rendered in some measure necessary, when we observe that the court is qualifying the position, that the army “commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime.” In qualifying this position they say, “ The travelling of individuals would, perhaps, not be sufficient.” Now, a solitary individual travelling to any point, with any intent, could not, without a