TREASON.

Observations on the law of treason in the United States, as applicable to the case of colonel Aaron Burr.

Written before the trial at Richmond.

THE primary question in this case is, what is meant by the terms levying war, as used in the constitution? do they mean preparing a force for war, or actually making war?

The supreme court, or rather the chief justice, in the case of Bollman & Swartwout, seems to have proceeded on the idea, that these words mean merely " the preparation of a force for the purpose of making war."

The distinction arises between the preparation of a force and the use of the force when prepared.

No case has arisen in this country, before that of Bollman & Swartwout, in which the attention of the court could have been called to this distinction. In the cases of the northern and western insurgents in Pennsylvania, the force was actually used as well as prepared. The question in those cases was, whether the use of force, in military array, for the purpose of opposing, not the general power of the government, but the execution of a particular law, would amount to "levying war."

It is a rule of constant recurrence and of the utmost importance too, in the application and construction of legal decisions, that general expressions employed by the court are to be taken with particular reference to the particular facts and questions then under consideration. The reasons of this rule are sufficiently obvious to all who have accustomed themselves to consider the operations of the human mind and the imperfections of language.

If, therefore, the court, in declaring their opinions in the cases of the western and northern insurgents in Pennsylvania, have used any general expressions which appear to give countenance to the doctrine, that merely "preparing a force for

war" amounts of itself to "levying war" within the meaning of the constitution, such general expressions must be construed with reference to the facts and questions in those cases, and cannot, therefore, be considered as authorities in favour of such a doctrine.

This great question therefore, which lies at the foundation of our whole law of treason, and the decision of which, in the manner which is now contended for, would give an entirely new complexion and character to that law, has never been considered, much less decided, before the case of Bollman and Swartwout.

In that case it was not raised nor discussed at the bar, nor ever incidentally adverted to. It was indeed contended that no force had been prepared, that no military assemblage had ever existed, in fact; which renders it wholly unnecessary to consider whether the mere preparation of the force, without using it for any hostile purpose, would constitute treason. Accordingly that question was not raised, nor in any manner considered. The argument went entirely and solely to show that no force had been prepared; in which case it was perfectly clear that no treason could have been committed.

From this course of the argument the supreme court seems to have considered it as admitted, or to be taken for granted, that the mere assemblage of the men, the mere preparation of the force, without the actual use of it for any hostile purpose amounted to treason. This doctrine was accordingly taken for granted, whether the evidence before them furnished probable cause for believing that a force had been assembled with an intent to make an attack on the United States or any part of their territory. Finding no such probable cause in the evidence they dismissed the prisoners.

Certainly it cannot be pretended that an opinion so given deserves the weight of an authority; as the point was not raised nor considered at the bar the court had no assistance in forming this most important and interesting opinion. Its attention was not particularly called to the point. No authorities were cited, nor do any appear to have been considered; and the

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decision, therefore, is destitute of all those ingredients, which could give it weight and authority. This opinion, moreover, was perfectly unnecessary in the case; as the court was of opinion that in point of fact there was no probable cause to believe that an actual assemblage for hostile purposes had taken place, it became wholly unnecessary to decide what would have been in point of law the effect of such an assemblage if it had existed. Where, indeed, a point which afterwards appears to be unnecessary to the decision of the case has nevertheless been properly raised in it and has been argued and considered, the courts if clear in opinion on that point will decide; and their decision will have the weight of an authority. With instances of this the law books abound. But surely this degree of respect cannot be claimed for a decision which the case did not require, which involves principles of the greatest difficulty, novelty and importance, and was aided by no argument from the bar nor any particular consideration on the bench. Such a decision certainly cannot be viewed in any other light than that of a mere obiter dictum of the single judge who gave the opinion. Certainly it cannot be considered as settling the law of treason, more especially as, if it be so settled, that law assumes a new and frightful aspect, unknown to our forefathers and terrible to us and our posterity.

That this opinion was not maturely considered nor distinctly understood at the bench of the supreme court, that the distinction between the mere preparation and the use of the force never occurred to the learned and excellent judge who delivered the decision of that court in the case of Bollman and Swartwout, appears clearly from the very vague and inaccurate manner in which that part of the decision is expressed. This vagueness and inaccuracy, in a judge who is so remarkable for the logical precision of his ideas, can be accounted for only by the fact, that the distinction between the preparation and use of the force was not presented to the view of the court, and was of no importance in the case. If no force was actually assembled, no treason could be committed. This was clear and admitted. The case was rested at the bar on the mat

ters of fact, that no force had been assembled. The court was of that opinion and decided the case on that ground. What the legal effect of the mere assemblage of the force might have been, what difference there is in law between the assemblage and the use of the force were points wholly immaterial and not raised nor mentioned in the argument. The court, therefore, was not called upon to consider these points; and in deciding the case, it used vague language, which proves that it confounded the preparation of the force with the use of it when prepared.

This is manifest from several circumstances.

First, This opinion cites and relies upon that which was given by judge Chase in the case of John Fries. Now the opinion of judge Chase expressly declares and in the part cited, that the force must not only be collected but used also, in order to constitute the crime of treason. The words of the judge are some actual force or violence must be used, in pursuance of such design to levy war." That is, there must not only be an assemblage of men with intent to levy war, but they must do some hostile act; they must commit some violence.

If any doubt could remain from this part of judge Chase's opinion, that he considered the use of the force necessary as well as its preparation, that doubt would be removed by a subsequent part of his opinion, where he says to the jury, "It must be proved to your satisfaction that the prisoner at the bar (Fries) incited, encouraged, promoted or assisted the insurrection or rising of the people at Bethlehem: the terror that they carried with them, with intent &c. and that some force was used by some of the people assembled at Bethlehem."

Here it is expressly declared that the assemblage, the intent, the march to Bethlehem were not enough without some force: that is, some act of violence being used in pursuance of the hostile intent.

Judge Chase was on the bench when the opinion in the case of Bollman and Swartwout was delivered. Can it be conceived, that, in assenting to that opinion, he intended to assent to a proposition so contrary to the doctrine laid down by him

self with great deliberation in the case of Fries? Can it be conceived that if he had understood the opinion to be thus contradictory he would not have objected to it; and that such an objection would not have produced an explanation among the members of the court, a discussion of this point and a difference in their opinions as delivered.

Is it not much easier to conceive that the chief justice in writing the opinion had confounded the assemblage of the force with the actual use of it by the perpetration of some act of violence; and that when the opinion was read to the other judges for their approbation, this mistake, relating to a point which had not been discussed nor even mentioned, had escaped their notice?

It is highly probable that an argument equally forcible might be drawn from the opinion of judge Iredell in the case of Fries, which is also cited by the supreme court in the case of Bollman and Swartwout, but as the book is not in my possession I cannot speak with certainty.

The opinions of judge Patterson, in the cases of Vigol and Mitchell, 2 Dall. 346. 348. &c. is also cited by the supreme court; and they 'furnish strong additional reason for believing that the court confounded the assemblage of the force with its actual employment. In those cases, acts of actual violence and hostility after the assemblage of the force were laid in the indictment and proved. Although the language of judge Patterson is not so clear as that of judge Chase, yet taken, as it must be, with reference to the subject matter, it shows sufficiently that the actual employment of the force in some act of violence or hostility, was necessary to constitute treason. Had he considered the mere assemblage and intent as sufficient, a great part of his reasoning was wholly superfluous; and he was very remarkable for avoiding superfluous reasoning and even superfluous expressions. He takes pains to prove that Mitchell, after attending the assemblage at Couch's fort, was sufficiently proved by two witnesses to have been present at Neville's house, where the act of violence was committed. The assemblage at Couch's