|
I ¦
'.mi i'i nm iw^annim w ju';i^wn|l
Imported
In the ships Othello and Canawu, from Liver-
pool, and for sale by
JOHN WOOD & Co
No. 18, Calvept-street.
155 packages of COTTON & WOOLEN
GOODS, suitable for the present and aP-
preaching season.___,. August 2$i______d
Wanted,
A youni; Woitwn, from 18 to 25 years of"
ajaje, to take care of a child, in a private family.
To such as can come well rec.ommei.ded, li-
beral wages will be given. Inquire at this
Office. Sept 7. d
Soap and Oil.
200 boxes Brown,"} cniP
100 do. White, S ayJAr
89 cases fresh Florence Oil,
Just received per schooners Gorham Lovel,
and Francis, and for sale by
JJUFKUM & GOODHUE,
No. 84, Bowly's wharf
July 14. d
BEEF.
100 bbls. Boston, No. 1, BEEF, just re-
ceived and far sale bv
FITCH HALL, Jun.
81, Bowly's.wharf
July 1._______ _______________4_
For Sale,
The CARGO of the shp Rebecca, Wm. Wyse,
master, /rem, Batavia, consisting of
700.000 lbs. COFFEE,
1,000,000 do. SUGAR,
60,000 do. PKPPER.
S. SMITH & BUCHANA.N.
S ept 2._______________d8ti
Wanted,
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,
Etc. Inquire at Growl's Livery Stable.
Sept 10.____________________ _ d4tf
A Handsome Saddle Horse,
For sale at David Baily's Stable, well cal
cnlated for the Troop, will be sold cheap, as
the owner has no use for him.
Seat 10. d4t
For 8%le.
A healthy Negro GIRL, about 14 years
of age, just from the country, to he sold for
a term of years. Apply at this office.
Sept 8. d4t
For Sale,
123 hhds. •"}„,, „ . ,.,.
14 tierces C°f ve'7 s"Penor quality
Ifi bblsT $ whi'ed SUGAR,
50 hhds ~> Of brown do.
3 tierces 5 do. do.
A few hhds. and barrels of first quality
Muscovado do.
60 half boxes Spanish Segars,
14 bbls. prime Green Coffee. Applv to
EATONT R. PARTRIDGE,
No. 1, Commerce-street.
Sept 10.____________d4t|
Marr and Gibson,
No. 7 Calvert street,
Have importe1 in the Canawa, and Othello,
from Liverpool, and Grand Seignior, from
Hull, a principal part of their
WOOLENS.
Also, in the Fame, a handsome assortment of
Cutlery.
By the next arrivals, they expect their as-
sortment of Dry Goods, Hardware and Sad-
dlery, will be made complete.
Sept la, d
Stewart, Montgomery &f Co.
No. 206, Market-street, Opposite thelnt'ian
Shieen,
Have received by the Fame, from Liver-
poo!, Cloths, Cassimeres, Baizes, Flannels,
Blankets, Kendal Cottons. Welch Plains,
Kerseys and Half Thicks, Stuff's, &c. which
they offer for sale by the piece, or package..
They daily expect a further supply from Lon
don and Liverpool, which will render their
assortment complete.
TO LET,
Two Warehouses on Smith's wharf j and
the Store, lately occupied bynames Somer
yill & Co._______Sept U.__ d6t 2aw
To Let,
That new and commodious two storv brick
DWELLING, situiie in North Chartes-st
a few doors above Church street, and adjoin,
ing the residence of Mr. George Crosdale. Ii.
point of neatness and convenience, this Hor,,«e
is calculated to please, and wil b.- found tohe
surpassed by few Terms will beroade kj'.own
by application to
CHARLES L. BOEHME,
September 10 d4t
Miss Martha Ann Honeywell
Returns her sineere thanks to the Ladies
and Getitlen.en oC Baltimore, for their polite
attention to In r, and inform! them that, to
.complete her stay in this city, she intend* on
the 17th,of the present month to move, from
No. 2 North Charles-street to Full's Point
sept 10 , i!4t
To Rent, T~
And possession had rm the lfWr October next,
Tbe*WAKEHOUSE, at present occupied
by G. F. r^ L. Warfieid, at the corner of tsal-
tinmi'", k Howard-street, opposite the ware-
house of Messrs. M Donald and Kidg. ly —
This stand is equal to any in the city of B d-
tijrnve, for either the Dry Good, or Grocery
Buuie. ss, b ing; sufficiently large for the sto-
rage of all kinds of country produce.
GEO. F. WARFIELD.
September 1. —.
The City Commissioners ,
Will please take notice that they will meet
on Tuesday, the 15th instant, at 4 (.'clock, if
fair, if not the next fair day, at No. 59, North
Guy street, to rectify a dispu.e concerning'
the said Lot. Ad these concerned will please
attend. JOHN M'KAY, Trustee.
Sept 11._____________________d4tj
Horses for Sale.
A pair of beautiful bright bay HOP SES, of
action and figure : they go finely in harness,
either t&ndum or side and Side, and are per
fectly sound.— Also, a handsome bljod bay.
HORSE, accustomed to harness, and goes
we'.l under the saddle, They may be seen at
John Meginr.is's livery stable, in North Fre-
derick-street, on the VOth or 11th of this month,
after which if not sold, they will be immedi-
ately removed from town.
Sent. 10. d4tj
TRP-L OF AARON BURR,
(Continued by adjournment, and held at
the Capitol, in the hall in the house of de-
legates) for High Treason against the li-
nked States.
OPINION
Of the court on a motion to arrest the evl- j
deuce—delivered on 3ist August.
[Continued.']
Judge Patterson, 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 j
necessary to constitute a levying war, but j
in giving his opinion incases in which force j
was actually employed, he considers the |
crime in one case as dependent on the inten-
tion, and in the other case he says, " com-
bining these facts and this design," (that is,
combining actual force with a treasonable
design) " the crime is high treason."
Judge Peters has also indicated the opini-
on that force was necessary to constitute
the crime of levying war
Judge Chase has been particularly clear
and explicit. In an opinion which he ap-
pears to have prepared on great considerati-
on, he says, " The court are of opinion, that
if a body of people conspire and meditate
an insurrection to resist or oppose the exe-
cution of a statute of the United States by
forcc\ that they are only guilty of a high
misdemeanor; but if they proceed to carry
such intention into < «. :ution by force, that
they are guilty of the treason of levying
war ; and the quantum of the force employ-
ed neither increases nor diminishes the crime
—whether by one hundred or one thousand
persons, is wholly immaterial.
" The court are of opinion, that a com-
bination or conspiracy to levy war against
the United States, is not treason unless com-
bined with an attempt to carry such combi-
nation or conspiracy into execution, some
actual force or violence must be used in pur-
suance 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 of war."
In various parts of the opinion delivered
by judge Chase, in the case of Fries, the
same sentiments are to be found. It is to be
observed, that these judges are not content
that troops should be assembled in a conditi-
on to employ force. According to them
some degree of force must have been actual-
ly 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 pro-
bably is, because in the cases in which their
opinions were given, the design not having
been to overturn the government, but to re-
sist the execution of a law, such an assem
blage would be sufficient for the purpose, as
to require the actual employment of force
to render the object unequivocal-
Bat it is said all these authorities hn> e
been overruled by the decision of the su-
preme court i?i the case of the United States
against Swartwout and Bollman.
If the supreme court have 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. t 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 to establish a principle never before re-
cognized, should be expressed in plain and
explicit terms. A mere implicrtion ought
not to prostrate a principle which Seems to
be so well established. Had the intention
been entertained to make so material a
change in this resptcr, the court ought to
have expressly declared, that any assem-
blage of men whatever, who had firmed a
treasonable design, whether in force, or not,
whether in a condition to attempt the de-
sign 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 expiession of the
kind is to be found in the opinion of the su-
preme court. The foundation on which this
argument rests is the omission of the court
to state,thattheassemblagewhich constitutes
the fact of levying war ought to be in force,
and some passages, which show that the
question respecting the nature of the assem-
blage, was not in the mind of the court
when the opinion was drawn, which pas-
sages are mingled with others, which a least
show that ihere was no intention to depart
fiom the eourse of the precedents incases of
treason by levying war.
Every opinion, to be correctly understood,
ought to be considered with a view to the
case in which it was delivered. In the case
of the United States sgainst Bollman and
Swartwout, there was no evidence that even
two men had ever met for the purpose of ex-
ecuting the plan, in which those persons
werechargedwithhaving participated. It was
therefore sufficient for the court to say that
unless men were assembled war could not lie
levied. That case was decided by this de-
claration. The court might indeed have de-
fined the species of assemblage which would
amount to levying of-war, but as this opi-
nion was not a treatise on treason, but a de- 1
cision of a particular case, expressions of
a doubtful import should be construed in re
ference to the case itself; and the mere
omission to state that a particular citcura
stance was necessary to the consummation
of the crime, ought not to be construed in"
to a declaration that the circumstance was
unimportant General expressions ought
not to be considered as overruling settled
principles without a direct declaration to
that effect. A fter these preliminary observa-
tions 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 prisoner now
before the court has been committed, war
must be actually levied against the United
States. However flagitious may be the crime
of conspiracy to subvert by force the gov-
ernment 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 brouffc into operation by
the assemblage of menTor a purpose trea-
sonable in itself, or the fact ot levying war
cannot have been committed."
Although it is not expressly stated that
the assemblage of mm for the purpose of
carrying into operation the treasonable in.
tent which will amount to levying war, must
be an assemblage in farce, yet it is fairly to
be inferred from the context, and nothing
like dispensing with force appears in this
paragraph. The expressions are, " To con-
stitute the crime, war must be actually le-
vied." A conspiracy to levy war is spoken
of as " a conspiracy to subvert by force the
government of our couutry." 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 ccurt to say,
that no individual can be guilty of this crime
who has not appeared in arms against his
country. On tine contrary, if war be actu-
ally levied, that is, if a body of men be ac-
tually assembled in order to effect by force
a treasonable purpose, all those who per-
form any part, however minute, &c. and
who are actual'y leagued in the general
conspiracy, are traitors. But there must
be an actual assembling of men for tlie trea-
sonable purpose, to constitute a levying ot
war."
The observations ma [le on the preceding'
paragraph aoply to this. " A body of men
actually assembled, in order to effect by
force a treasonable purpose," must be a body
assembled with such an appearance of force
as would warrant the opinion that they were
assembled for the particttlar purpose ; an as-
semblage 'o constitute »n actual levying of
year, should bean assemblage witii sueh an
appearance of force as would justify the opi-
nion that thev met for ihe pin pose.
This explanation, which is believed to
be the natural, certainly not a strained ex-
planation ot the words., derives some addi-
tional aid from the terms in which the pa-
ragraph 1 isi qui ted commences. " It is
not the'uitemt ,u of the court to say that no
individual can Lie guilty of treas n v. ho has
not appeared in arms against-his country."
Tiik words seem to obviate an inference
which might otherwise have been drawn
from the preceding paragraph. They indi-
cate that in the mind of ttre court the as-
semblage stated in thai paragraph was an as-
semblage in arms—that the individuals who
composed it had appeared in arms against
thei. country. That is in other words,
that the assemblage was a military, a war-
like assemblage.
The succeeding paragraph in the opinion
relates to a conspiracy, and serves to shew
that force and violence <¦¦ ere m the mind of
the court, and thai there was no idea of ex-
tending the crime of tieason by construction
beyond the coustituti nal definition which
had been given of it.
Returning to the case actually before the
court, it is said " a design to overturn the
government of the United States of Ame-
rica in New-Orleans by force, would have
been unquestionably a design which if car-
ried into execution would have been trea-
son, and the assemblage of a body of men
for the purpose of carrying it into execution
would amount to levying of war against the
U. S."
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 ?
Certainty an assemblage in force ; an as-
semblage prepared and intending to act with
force ; a military assemblage. The decisi-
ons therefore made by the judges of the
U. States, are then declared to be in con-
formity with the principles laid down by the
supreme court. Is tins declaration compat-
ible with the idea of departing from those
opinions on a point within the contempla-
tion of the curt ? The opinions of judge
Patterson and judge Idredell are said to im-
ply an actual assemblage of men though
they rather designed to remark on the pur-
pose 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 vws the
particular point the court meant to establish,
and that the idea of force was never sepa-
rated from this assemblage.
o
The opinion of judge Chase is next quot-
ed with approbation. This opinion in
terms requires the employment of force.
After stating the verbal communications
said to have been oiada by Mr, Swat'twout
to gen. Wilkinson, the court says " if these
words import that the government of
New-Orleans was to be revolutionized by1
force, although merely as a step to or a mean \
of exciting some greater projects, the de- !
sign 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 to- j
gether after this plan had been formed,
would be the act of levying war would .
certainly be misconstrued. The sense of the j
expressions ; '' any assemblage of men" is ;
restricted by the words " for this purpose." '
Now could it be in the contemplation of the j
court that a body of men would assemble
for the purpose of revolutionizing New-
Orleans by force, who should not them-
selves be in force ?
After noticing some difference of opinion
among the judges respecting the imp rt of
the words said to have been used by Mr.
Swart vout the court proceeded to observe :
" But whether the treasonable intention be
really imputed to the plan or not, it is ad-
mitted that it must have been carried into
execution by an open assemblage for that
purpose, previous to the arrest of the pri-
soner, in order to consummate the crime as to
him."
Could the court have conceived" an o-
pen assemblage" " for the purpose of o-
verturning the government cf New-Orleans
by force" to be only equivalent to a secret
furtive assemblage without the appearance of
force ?
After quoting the w rds of Mr. Swart-
wout, from the affidavit in which it was
stated that Mr. Burr was levying an ar-
my of seven thousand men, and observ-
ing the treason to be inferred from these
words would depend on the intention with
« hich it was levied, and on the progress
which had been made in levying it, the
court says " the question then is, whether
this evidence proves col. Burr to have ad-
vanced so far in levying an army as actual-
ly to have assembled them."
Actually to assemble an army of 7,000
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 argaed that
since it cannot be necessary that the whole
7 000 men should be assembled, their com.
mencing their march by detachments to the
place of rendezvous must be sufficient to
constitute the crime."
« This position is cttrrect with sort* qua-
lification. 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 he an actual assemblage ; and there-
fore this evidence should make the fact un-
equivocal.
" The travelling of individuals to the place
of rendezvous, would perhaps not be suftici-
f nt. This would be an equivocal act, and
has no warlike appearance. The meeting
of particular bodies of men, and their march-
ing from places of partial to a place of gene-
al rendezvous, would be such an assem-
blage/'
The position here stated by the counsel
for the prosecution is, that the army com-
mencing its march by de,uchments 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 toge-
ther, but not in a military form) " would
perhaps not be sufficient." Why not suffi-
cient ? Because, says the court, " This
would be an equivocal act and has no warlike
appearance." The act then should be une-
quivocal, and should have a warlike appear-
ance. It must exhibit in the words of sir
Matthew Hale s/ieciem belli, the appearance
of war. This construction is rendered in
some measure necessary when we observe
that the court is qualifying the position,
" Tf*at 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." JJow, a solitary individual,
travelling to any point, with any intent,
could not, without a total disregard of lan-
guage, be termed a marching detachment.
The court, therefore, must have contemplat-
ed several individuals travelling together ;
and the words being used in reference to the
position they were intended to quality, would
seem to indicate the distinction between the
appearance attending the usual movement
of men for civil purposes, and that military
movement which might in correct language
be denominated " marching by detach-
ments."
The court then proceeded to say, " 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."
It is obvious from the context, that, the
court must have intended to state' a case
which would in itself be untquivocaj, because
it would have a warlike appearance. The
case stated, is that of distinct bodies of men
assembling at different places and marching
from these places of partial to a place of gen.
rendezvous. When this has been done, an
assemblage is produced which would in it-
self be uitquivocal. But when is it done I
what is the assemblage here described ? The
assemblage formed of the different bodies of
partial at a place of gen. rendezvous. In
discribing the mode of coming to his assem-
blage the civil term " travelling" is dropped,
and the military term" marching" isemploy-
ed. If this was intended as a definition of
an assemblage which would amount to levy-
ing war, the definition requires an assem-
blage at a place of general rendezvous, com-
posed of bodies of men who had previously
assembled at places of partial rendezvous.
But this is not intended as a definition, for
clearly ii there should be no places of partial
rendezvous, if troops should embody in the
first instance, in great force for the purpose
of subverting the government by violenc^
the act would be unequivocal, it would have
a warlike appearance, and it would, accor-
ding to the opinion of the supreme court
properly construed, and according to the
English au horities, amount to levying war.
But this, though not a definition, is put as
an example ; and surely it may be safely ta-
ken as an example. If different bodies of
men, in pursuance of a treasonable design
plainly proved, should assemble in warlike
appearance at places of partial rendezvous,
and should march from those places to a
place of general rendezvous, it is difficult to
conceive how such a transaction could take
place without exhibiting the appearance of
war, without an obvious display of force.
At any rate, a court in stating generally
such a military assemblage as would amount
to levying war, and having a case before
them in which there was no assemblage
whatever, cannot reasonably be understood
in putting such an example, to dispense
with those appearances of war which 3eerrt
to be required by the general current of au-
thorities. Certainly they ought not to be
so understood when they say in express
terms, that" it is more safe as well as more
consoant to the principles of our constitu-
tion, that the crime of treasen should
not be extended by construction to doubtful
cases; and that crimes not already within
the constitutional definition, should receive
such punishment as the legislature in its wis-
dom may provide."
After this analysis of the opinion of the
supreme court, it will be observed, that the
direct question, whether an assemblage of
men which might be construed to amount
to a levying of war, must appear in force or
in military form, was not in argument or in
fact before the court, and does not appear to
have been in terms decided ? The opinion
seems to have been drawn without particu-
larly adverting to this question, and there-
fore upon a transient view of particular ex-
prssions, might inspire the idea that a dis-
play of force, that appearances of war were
not necessary ingredients to constitute the
fact of levying war. But upon a more in-
tent ami more accurate investigation of this
opinion, although the terms of force and
viol nee are not employed as descriptive of
the assemblage, such requisites are declared
to be indispensable, as can scarcely exist
without the appearance of war, and the ex-
istence of real force. It is said that war
must be levied in fact, that the object must
be one which is to be effected by force ; that
the assemblage must be such as to prove that
this is its object, that it must not be an.
equivocal act, without a warlike appearance,
that it must be an open assemblage for the
purpose of force. In the course of this
opinion, decisions are quoted and approved,
which require the employment of force to
constitute the crime. It Seems extreme iy
difficult, if not impossible, to reconcile
these various declarations with the idea that
the supreme court considered a secret un-
armed meeting, although that meeting ha
of conspirators, and altbough it met with a
treasonable intent, as an actual levying of
war. Without saying that the assemblage
must be in force or in warlike form, thty
express themselves so as to shew that this
idea was never discarded, and they use terras
which cannot be otherwise satisfied.
The opinion of a single judge certainly
weighs as nothing if opposed to that of the
supieme court ; but if he was one of the
judges who assisted in framing that opinion,
if while the impression under which it was
framed was still fresh upon his mind, he de-
livered an opinion on the same testimony,
not contradictory to that which had been
given by all the judges together, but show-
ing the sense in which he understood terms
that might be differently expounded, it may
fairly be said to be in some measure expla-
natory of the opinion itself.
To the judge before whom the charge a,
gainst the prisoner at the bar was first bro't,
the same testimony was offered with that
which had been exhibited before the su-
preme court, and he was required to give
an opinion in almost the same case. Upon
this occasion, he said, " War can only be
levied by the employment of actual force.
Troops must be embodied ; men must be as-
sembled in order to levy war." Again be
observed, " The fact to be proved in this
case, is aa act of public notoriety. It must
exist in the view of the world or it cannot
exist at all. The assembling of forces to k-
ii
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