|
TRIAL OF A\RON BURR,
(Continued by adjournment, and held at
the capital, in the hall in the house of de-
legates) far High Treason against the U
nited States.
OPINION
Of the court on a motion to arrest the evi-
dence -delivered on 3-:st August.
[Continued."]
Lord Hale says (149. 6.) " what shall
be said a levying of war is partly a ques
tion of fact, for it is not every unhwful or
{ riotous assembly "f many persons to do an
unlawful act, though de facto they c. mmit
th« act they intend, that makes a levying
of war • for then every ri t would be trea-
son, &c" ' but it must be such an assem-
bly as carries with it sfec'tem bell':, the ap-
pearance of war, as if they ride or march
vexillh explicntis, with colours flying, or if
they be formed into companies or furnished
with military officers, or if they are armed
with military weapons as swords, guns,
bills halberds, pikes, and are so circum-
stanced that it may be reasonably conclud-
ed they are in a posture of war, which cir-
cumstar.ces are so various that it is hard to
describe them all particularly"
" On the general expressions in all the
indictments of this nature that I have seen
.are more guerrino arraiati" arrayed in war-
like manner."
He afterwards adds, " If there be a war
levied as ts above declared, viz. an assembly
arrayed in warlike manner, and so in the
posture of war for any treasonable attempt,
it is bellum Ihutum but tint perrussum."
It is obvious that Lord Hale supposed an
assemblage ' f men in force, in a military
posture, to be necessary to eonsti ute the
fact of levying war. The idea he appears
to suggest, that the apparatus of war is ne-
cessary, has been very justly combatted by
an able judge who has written a valuable
treatise on the subject of treason ; but it is
not recollected that his position, that the
assembly should be in posture of war for
any treasonable attempt, has ever been deni-
ed. Hawk. ch. 17. sec. 23. says, " That
not only those who rebel against the king
and take up arms to dethrone him, but also
In many other cases, those who in a violent
and forcible manner withstand his lawful
authority are said to lew war against him,
and therefore those that "hold a fort or castle
against the king's forces, or keep together
armed number- of men ag*i«st the king's
express Command, have been adjudged to
levy war against him."
The cases put by Hawkins are all cases
of actual force ant] violence. " Those who
rebel against tha king and take up arms to
dethrone him," in many other cases
those " who in a violent and forcible man-
ner withstand his lawful authority." " Those
that hold a fort or castle against his forces.
Or k(=ep together armed numbers ol men
against his express command."
1 nese oases ate obviously cases of force
and violence;
Hawkins next proceeds to describe cases
in which war is understood to be levied un
der the statute, although it was not directly
made against the government. This lord
Hale terms an interpretation or constructive
l«vyingof war ; audit will be perceived
t lat he puts no case in which ac rial iorce is
dispersed with.
" Those also he says who make an in-
surrection in order to redress a public griev-
ance whether it be a real or pretended one,
and of their own authority attempt with
force to redress it are said to levy war a-
gainst the king, although th,
which manifestly tends to a downright re-
bellion. As where great numbers by force
attempt to remove certain persons from the
king, &c." The cases here put by Hawk-
ins of a constructive levying of war,, do in
terms require force as a constituent part of
the description of the offence.
Judge Foster in his valuable treatise on
trea§on states the opinion -thich has been
quoted from lord Hale, and differs from that
Writer so far as the latter might seem to re-
cite swords, drums, colors &c. what he
terms the pomp and pageantry o» war, as
essential circumstances to constitute the fact
ot leveying war. In the cases of Demaree,
and Put chase, he says, that want of these
eircustances weighed nothing with the court
althojgh the prisoners counsel insisted much
on that matter. But he adds, " the number
of the insurgents supplied the want of mili-
tary weapons ; and they were provided with
axes crows, and other tools of the like na-
ture proper for the mhchief they intended
to effect, tutorarma ministrut."
It is apparent that judge Foster here al-
ludes to an assemblage in force, or as lord
Hale terms it, '• in a warlike position"—
that is it* a condition to attempt or proceed
upon the treason which has been contem-
plated. The same author after ards states at
large the cases of Damaree and Purchase
torn 8th state trials, and they are cases
where the insurgents not only assembled in
force, in the posture of war, or in a condi-
tion to execute the treasonable designs,
but thep did actually carry it into execution
and did resist the geards who were sent to
disperse them.
Judge Foster states, sec. 4, all insurrecti-
ons to etiect certain innovations of a public
and general concern by an arwed force, to be
in construction of law, high treason within
the clause of levying war.
The case put by Foster of constructive
levying of war. all contain as a material in-
gredient the actual employment of force.
Alter going through this branch of his sub-
ject, be proceeds to state the law in a case
of actual leveyinp war, that is where the
war is intended directly against the govern-
ment.
He says, sec. 9, " An assembly armed and
arrayed in a warlike manner for a treasona-
ble purpose, is bellum Ivvatum, though not
bellum pucussum. Listing and marching are
sufficient overt acts, without coming to a
battle or action. So cruizing on the king's
subjects, under a French commission, Fiance
being then at war with us, was held to be
adhering to the king's enemies th ugh no
other act of hostility be proved."
f \n assembly armed and arrayed in a
warlike manner for any treasonable purpose,"
is certainly in a state of force ; in a condi-
'ion to execute the treason for which they
assembled. The words " enlisting & march-
ing," which are overt acts of levying war,
do 111 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 act as not
having happened, prove that event to have
been the next circumstance to those which
had happened : they are, " without coming
toa battle or action." " If men be enlisted &
march," (that is, if they march prepared for
battle or in a condition for action, for march-
ing is a technical term ap lied to the move-
ment 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 render-
ed the stronger by what seems to be put in
the same sentence as a parallel case with res
pect to adhering to an enemy. It is cruizing
under a commission from an enemy, with-
out committing any other act of hostility-
Cruizing is the act of sailing in warlike form
and in a condition to assail those of whom
the cruiaer 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,
a. Is it not actually levying war if they ac-
tually provide arms and levy men, and in a
warlike manner set out and cruize, and come
with a design to destroy our ships ?" Mr.
Phipps still insisted " it would not be an
actual levying 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 fight
ing. In this the counsel was very properly
everruled ; but it is apparent that the judges
proceeded entirely on the idea that a warlike
posture was indispensible to tfte fact of le-
vying war.
Judge Foster proceeds to give other in-
stances 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 orfort against the king or
his forces, if actual force be used in order to
kee/i possession, is levying war. But a bare
detainer, as supposed by shutting the gates
against the king and 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 tech-
nically 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 griev-
ances, whether real or pretended. For the
law does not, neitheir can it permit any pri-
vate man or set of men to interfere 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 com-
position of this crime.
It would seem then from the English au-
thorities, 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 feet. It must be a war-
like assemblage, carrying the appearance of
force, & in a situation to practise hostility.
Se era! judges of the United States have
given opinions at their circuits on this sub-
ject,, 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 for-
cible opposition the direct tax, Judge Iredell
is understood te 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 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, accord-
ing to this opinion of Judge Iredell, required
the actual exertion of force.
[To be continued.^
BY THIS DAY'S MAILS.
EIGHTY-FIFTH BULLETIN.
Tilsit, June 24.
The grand marshal of the palace, Durec,
went yesterday to compliment the emperor
Alexander.
Marshal count Kalkreuth was presented
this day to the emperor. He remained an
hour in his majesty's cabinet.
The corps of marshal Lannes was re-
viewed this morning by the emperor. He
made several promotions, and gave rewards
to those who had distinguished themselves
by their bravery.
To-morrow the two emperors will have
a conference.
EIGHTY-SIXTH BULLETIN.
Tilsit, June 25:
Agreeably to arrangements, the two em-
perors met on the raft in the centre of the
Niemen, and saluted each other in the most
cordial manner.
The vast number of persons belonging
to each army, who flocked to both banks of
the river to view this scene, rendered it the
m re interesting, as the spectators were
brave men, who came from the extremities
of the w.rld.
CONSTANTINOPLE, June 14.
The new emperor Mustapha follows the
political system observed before the revolu-
tion which placed him on the throne, and
by the advice of the Mufti, he has deter-
mined to continue the war against Russia.
The populace have declared entirely in
favour of the new government. On the
tgthofMay, the Turkish fleet gained ad-
vantage over the Russian squadron. After
an obstinate battle, the captain Pacha land-
ed in the island of Tenedos, and made him-
self master of it. The army of the grand
Vieier consists of 120,000 men, divided in-
to three corps of 40,000 each. The right
wing of this army has already entered Bu-
charest. All Transylvania is full of fugi-
tives, who have fled from the unfortunate
country of Wallachia.
The day before yesterday a Tartaer (Cou-
rier) reached town from Egypt, with the
following intelligence :
' The English, in order to avenge the
defeat sustained near Rosetta, marched a-
gain from five to to six thousand men from
Alexandria to attack that town, but were
surrounded on their march and either put
to the sword or taken. The English garri-
son of Alexandria reduced to 1000 men.
demanded thereupon to withdraw on board
Admiral Louis's fleet,, which was granted."
Contrary to custwn the porte has for the
first time announced that victory to the pub.
lie by an official bulletin.
ANTWERP, July 7.
A few days backi 2 sail of the line, Du-
guesclin and Caesar, were launched. The
Antwerp is to proceed to Flushing, where
the Charlemagne and Commerce de Lyon
are already arrived. Another ship of the
line, La Ville de Dantzic, will be launched
on the 15th August, the birth-day of the
emperor Napoleon*
[Hamburg Correspondenten, July »J.]
PARIS, July 9.
A journal announces, that at the dinner
given at Tilsit, at which the two emperors
were present, the following toast was given
—" The Ireedom of the Seas."
CONTINENTAL PEACE.
HAMBURGH, July 15.
A courier from Berlin has just arrived,
with the following important intelligence,
so consolatory to humanity :—
" Imperial Head-quarters, at Tilsit, July 9.
« NOTICE TO THE ARMY,
" Yesterday, the 8th of July, peace was
signed between the emperors of France and
Russia, by the prince of Benevento, the
French minister for foreign affairs, on the
one side ; and by the princes Kurakin
and Labanoff Von Rostrow, on the other.
These plenipotentiaries were furnished with
full powers by their respective sovereigns.
The ratifications were exchanged this day,
the 9th of July, as both sovereigns are still
at Tilsit.
(Signed)" The marshalprinceofNeufchtrtel,
BERTHIER."
LUNENBERG, July ifi.
5000 mtn of the German Legion have
arrived in the isle of Rugen from England.
LONDON, July 18—30.
Of the conditions of peace, no account
has yet been received. It is rumored, but
we trust without foundation, that in order to
obtain better terms for his Prussian majesty,
the emperor Alexander consented to some
stipulations unfavorable to this country.—
Rumor adds, that the peace is to be follow-
ed by several marriages : Jerome Bonaparte
with the princess Louisa of Austria ; the
archduke Charles with the princess of Sax-
ony. , ¦
There is a piece of intelligence brought
by the mail which surprised us. The Co-
penhagen Gazette, in communicating the
information of the christening of the Swe-
dish princess, states that th? sponsors were
the king of Prussia and Louis the 18th,
king of France. What will Bonaparte say
to this ? We cannot discover the slightest
symptom of a hostile disposition towards
this country on the part of Denmark.
We have received Paris papers to the 19th.
They state that the legislative body is to be
assembled on the 16th of next month Du-
roc is arrived at Paris, with several other
persons belonging to Bonaparte's household.
He is expected himself about the beginning
of August. It is still said that the emperor
of Russia and the grand duke Constantine,
are expected at Paris.
By the treaty of peace and amity with
Prussia, his Prussian majesty relinquished
all right and title to Hanover, and both par-
ties engage to invite the emperor of Russia
to guarantee the renunciation of his Prus-
sian majesty's pretensions to Hanover- [The
treaty was signed in Jan. i807, ]
It was reported last night that Stralsund
had surrendered to the French—The rumor
is not deserving of credit.
Letters from Malta of the first of June,
mention, that the Spartan frigate had arriv-
ed there a few days before from a cruize,
and had been chased Ly two different French
Squadrons out of Toulon. Her crew had
been roughly handled in an unsuccessful at-
tempt to cut out a large vessel in the port of
Nice- Out of seventy men employed, there
were fifty eight either killed or wounded ;
both th? first and second lieutenants lost
their lives.
LIVERPOOL, August t.
The mode-rate and reasonable language of
Mr. Perceval in the house of commons, on
this interesting subject [attack on the Che-
sapeake] has given general satisfaction to
the whole country. It acknowledges the
mutual obligation of both nations to respect
the rights of independent sovereignty in
each, and lays no stress on the rights de-
rived merely from superior power. The A.
mericans have never consented that we
should exercise at the pleasure of our naval
commanders, the privilege of searching for
deserters or English seamen even on board
private ships Can it then be expected that
the commanders of vessels which bear the
flag of the United States, will submit to
have their crews mustered and examined by
any British cruiser they may fall in with I
The principle may be fair or otherwise ; but
it cannot be denied that if the right of
search is to be admitted and applied to de-
serters, it should be common to both na-
tions.
In the case of the Leopard, the circum-
stances are very strong, and it is probable
that captain Humphreys may make out a
case which will completely justifv his con-
duct. But it is to be observed, that the A-
mericans state a very different case, and ma-
terially alter the circumstances of the whole
transaction. It therefore becomes in a great
degree, a question of fact, and we must
have more certain information, and more
exact details, before a decisive opinion can
be formed.
NEW-YORK, Sept. 9.
Arrived, the ship Manchester Packet,
Coffin, 46 days from Liverpool, dry goods
and coal. Left ship Ann Williams Macey,
of New-York, and ship Manchester, of
Philadelphia, to sail first wind.
The brigThomas, Attwater, 16 daysfrom
St. Croix, rum and sup-ar. Left, schr. Ca-
melion. Ycung, of Baltimore ; brig Louisa,
Lovell Boston ; brig Zoan, Celly, Port-
land ; schooners Jane Barnes, Wilson of
New-York, arrived 14th August ; St. Pe-
ter, Picket, Beverly; Washingt n, Eldridge,
of New-York, from Norfolk, arrived the
14th ; brig Ariadne, Culleti, arrived the
17th from Philadelphia.
The schr. Sally, Meekins, from N. Ca-
rolina, naval stores.
The sloop Chancellor, Storer, 8 days from
Richmond, flour and tobacco. The schooner
Hunter, Snewden, sailed 2 days before for
New-York; the sloop As'trea, Herbert, sailed
in m>. Left schr. Prudence-Mary, Shaw, for
do. in 4 days. Met in the river, near Old
Point Comfort, on Friday, the schr. Rich-
mond, Seaman, from New*York.
Below last night, a brig aqd & schooners.
Wind N. E.
Cleared, ship Indian Hunter, Newman,
Liverpool; brig Atlantic, Hicks, Cayenne ;
sch'r Venus, Oliver, Wilmington,; Friends,
Thompson, Teneriffe and Langarette.
The British ships of war Jason and Co-
lumbine, are still below. A boat from the
Columbine, manned with an officer and five
men, yesterday boarded the pilot boat Bro-
thers, to send dispatches to New-York ; and
while the officer was in the cabin, the sailors
pushed off in the boat, and landed at the
Hook.
PHILADELPHIA, September 10.
Arrived, brigj Welcome Return, Havana,
sugars ; sloop Rhoda & Sally, Pedrick,
Richmond, 9 days, coal.
Cleared, schr. Union, Sawyer, Portland }
Mark, Tabbut, Passamaquody ; brig Bet-
sy, Richmond, from St. Croix.
Lazaretto-, Sept. 8.
" Yesterday afternoon arrived the brig
Hefty, Bellows, 20 days from Poist-Petre,.
(Gaud.) with coffee and sugar ; also, brig
Betsey, Rickham, from St. Croix. Sailed
from thence on the ninteenth ult. Parted
one of her cables in a hurricane, left part of
her cargo on shore, and was obliged to pro*
ceed with only two casks of water and no
provisions on board
{ " Also, brig Alexander, Garwood, 30
days from Maracai bo, with coflee. Left
the brig .Venus, of Baltimore, taken by a
Spanish privateer on her passage to Curra-
coa.
123 hhds
14- tierces
16 bhl».
50 hhds
5 tierces
For Sale,
/ Of very-sup
C whi'e Claye
ipeaior quality
ayed SUGAE,
\ Of brown do.
1 do. do.
A few hhds. and, barrels of first quality
Muscovado do.
60 half boxes Spanish Segars,
14 bbls. prime Green Coffee. Apply to
" EATON R. P.ARTKIDGE,
No. 1, Commerce-street.
Sept 10._________ JHU_
Marr and Cibson,
No. 7, Calvert street j
Have imported in the Canuwa, and Othello,
from Liverpool, and Grand Seignior, from
Hull, a principal part of their
WOOl,ENS.
Also, in the Fame, a handsome assortment of
Cutlery.
By the next arrivals, they expect their as-
sortment of -Diy Coo,ij, Haidware and Sad-
dlery, will be made complete.
St-pt lo._____________________ d
Waived,
A commodious two or three story Brick
HOUSE, situate between Jones' Falls, and
Howard street. For particulars, inquire at
this office.___________Sept 10. d
For Sale,
A new covered CHAIR, with Harness,
&c. Inquire at Growl's Livery Stable.
Sept 10_________________________d4.f
A Handsome Saddle Horse,
For sale at David Baily's Stable, well cal-
culated for the Troop, will be sold cheap, as
the owner has no use fur him.
Seat 10. d'lt
For Sale.
A healthy Negro GIRL, about 14 years-
of age, just from the couurV, to he sold for
a term of years Apply at this office.
SfT) 8.____ ________c,4t
To Rent,
The LOWER STORY kf No. 6, South-
street. Possession may be had on the first of
October next. Inquire on the premise*.
August :>1. 2aw
House and Store
to let. I-iquire at
On Baltimore-street,
this Office. S«r>
9.
o4tJ
" George Hoffman
Has imp rted in the Othello and Cannanva,from
Liverpool,
102 P..CKLAGES
Season tbie Goods ;
Many of which are expr, sslv adapted to
the > xi)'i-t trad"______Sept 2 " cffo-coSt
JPatton and Jones,
No. 93, Market stieet, Baltimore, and No. 44,
Market-street, Philadelphia,
Have received i'iy the late arrivals fVoro
London and Liverpool, a complete assortment
of Eight Day and Table
CLOCKS,
Horizontal, Patent Lever, Chronometers,
and common Gold and Silver
WATCHES,
And Clock and Watch-maker's
Tools and Materia s.
Which they offer vej;y bw tor cash, or ac-
ceptances in town.
9lh mo. 8. eol2t
To Let,
That new and commodious two stefv brick
DWELLING, situiie in North Cfal/)«g-s6,
a few doors above Church-strejet. and adjoin*
ing tlv residence ot Mr. Geo'g-e Crosdale. In
point of neatness and Convenience, this House
is calculated to pleas', and wil be found to be
si: i-passed by few Terms will be m»de known,
by application to
CHARLES L.BOEHME,
September 10. d4t
Miss M art h a Ann Honeywell
Returns her sincere- thanks to the Ladies
and Gentlemen of Baltimore, for their [olifo
attention to her, and iin'ornis them that, to
complete her stay in this city, she intends on
the 17th of the pn sent month to moie from
No.2 North Charles-street to Full's Poini,
sept 10 ¦' d4t
City Commissioners' Office,
Baltimore, 10th Sept 1807.
NOTICE IS HEREBY GIVEN
To the proprietors of Lots situate on Queen-
street, betw.en Granby-street and Jones's-
Falls, that they have Uie foot-ways pavod front
of their respective Lota, on or before the 25th
instant, otherwise the city commissioners wili
have the same paved and charged to their ac-
count, with the addition of one-eighth of ft
dollar per foot in length, as a fine for neglect,
agreeably to an ordinance passed the 26th of
June, 1797.
By order of the board,
SAMUEL VINCENT, Clk.
'__________________________d4t
For Sale
That very valuable Property on which the
hay-scales now stand. The lot fronts Holli-
day-street seventy-five feet, and runs one hun-
dred and fifty "three feet lo North street : di-
visions will be made to suit purchasers. The
central situation, contiguity to the best water
in the city, and having the advantage of two
streets, one 80 and the other 40 feet wiik ,
renders this property most eligible for build.
ing. For terms apply to
DANIhL C. HOLLIDAY.
Sept. 9. ___ _______ eolm
Coffee-House Hotel,
No. 38, South-street,
Adjoining thti Merchants' Coffee- flousee
THE Subscriber respectfully informs his.
friends and the public that b« has opened
AN HOTEL, at the above sland, where lie
is determined no exertions shall be wanting
to merit public patronage ; he is :\ ell prepar-
ed for the reception of travellers both by laud
and water, who will find this central situati-
on convenient Doth for businss an 3 inforniadon-.
HEIL 1ECK.
N- B. Boarders taken by the Week, Ivionth
or Year.
03" A Public Ordinary served up every day
At 2 o'clock. Sept 9. eo3w
;
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