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United States v. Frederick Hoxie.

gency, so as to gratify the vengeance, or promote the views of aspiring or designing men. In the constitution we ac cordingly find this very limited definition of it: "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

The United States having no public enemy, it is only the first branch of this definition which will require your attention. With all the solicitude which was felt by the framers of our constitution to produce certainty, and to exclude interpretation in a matter so momentous, and with all their circumspection to avoid the use of terms in any degree vague or indefinite, cases have already occurred in this country, and will, no doubt, again arise, in which it will be difficult to say, whether the acts in question amount to a "levying of war," within the meaning of this instrument. Such is the imperfection of language, and so limited human foresight, that it is very difficult, whatever care be employed, always so to describe an offence, as not to leave some doubt of the meaning of the legislature, and still more so, to anticipate every case of a similar nature, which it might have been proper to provide for. To a system of laws so perfect, that Being, who takes in at one view, the past, present, and to come, is alone competent. When doubts, however, arise, as they often must, whether an offence belongs to the class assigned to it in the indictment, their solution in the first instance devolves on the Court, whose duty it then is, to give a jury such instructions as it may deem necessary, for their correct understanding of the law.

Having a constitutional regulation on the subject before us, it may be expected by some, that the Court will compare with the terms of that instrument alone, the facts which have appeared in proof, and by such test, determine whether the crime of treason has been committed. Were our examina

United States v. Frederick Hoxie.

tion thus restricted, it is impossible a moment's doubt could be harboured of the true character of this transaction. "A levying of war," without having recourse to rules of construction, or artificial reasoning, would seem to be nothing short of the employment, or at least, of the embodying of a military force, armed and arrayed, in a warlike manner, for the purpose of forcibly subverting the government, dismembering the union, or destroying the legislative functions of Congress. These troops should be so armed, and so directed, as to leave no doubt, that the United States, or their government, were the immediate object of their attack.

But, a wider range has been taken at the bar. Not only the constitution, but precedents have been resorted to, to furnish a rule for the present case. The Court, so far from feeling a disposition to find fault with this mode of treating the subject, has no objection to adopt it, in its remarks to you. It has already been observed, that, taking the constitution as our guide, not a doubt can be entertained of the prisoner's innocence of treason. Let us see, then, whether the different acts, which in England, or in this country, have been regarded as constituting the crime of levying war," will make any difference.

In taking notice of precedents, set by British tribunals, the Court does not mean to give any opinion on their binding ef fect in the United States; or discuss a question which has been much agitated-whether, by the use of these terms, it was intended to adopt the technical meaning which they had already received in England: or whether, considering treason as a new offence against a newly created government, the constitution on this point was to be interpreted by itself, without reference to, or with the aid of any common law decisions whatever? These questions will be left unconsidered—a decision of them now not being thought material. For, if the

United States v. Frederick Hoxie.

Court does not greatly err, no construction in England, and certainly none in America, has yet carried this doctrine the length to which we are at present expected to go.

In the first place, it is well understood, in both countries, that war must be actually levied, and that no consultation or conspiracy to subvert the government, or laws, however atrocious the offence, can amount to treason. In England, all insurrections to dethrone or imprison the King; or, to force him to change his measures, or to remove evil counsellors; to attack his troops in opposition to his authority; to carry off or destroy his stores provided for defence of the realm, if done conjointly with and in aid of rebels, or enemies, and not, only for lucre, or some private, malicious motive; to hold a castle or fort against the King, or his troops, if actual force be used in order to keep possession; to join with rebels freely and voluntarily; to rise for the purpose of throwing down by force all enclosures; alter the established law, or religion; to reduce the general price of victuals; to enhance the price of all labour; to open all prisons; that is, to effect innovations of a public and general concern by an armed force, or for any other purpose which usurps the government in matters of a public and general nature. All these acts have been deemed "a levying of war." So also have insurrections to redress by force national grievances; or to reform real or imaginary evils of a public nature, and in which the insurgents had no special interest; or, by intimidation and violence,-as was the case with Lord George Gordon, who however was acquitted,―to force the repeal of a law. But, when the object of an insurrection is of a local or private nature, not having a direct tendency to destroy all property and all government by numbers and armed force, it will not amount to treason; and, in these, and other cases that occur, the true criterion is, the intention with which the parties assembled.

United States v. Frederick Hoxie.

Having thus brought into one view the principal cases which, in England, have been adjudged to amount to levying of war, the Court will now proceed to the trials which have taken place within the United States, för treasons of the same description.

In 1794, an insurrection took place in four of the western counties of Pennsylvania, with a view of resisting and preventing, by force, the execution of certain acts of Congress imposing a duty on spirits distilled within the United States. In the trial of Mitchel, who was indicted for treason, before a Circuit Court of the United States, at which Judge Patterson presided, the Court held, that "to resist or prevent, by armed force, the execution of a particular act of the United States, is a levying of war against the United States, and, consequently, treason, within the true meaning of the constitution."

On the trial of Fries, before the same Court, in 1799, for treason, the Court (Judge Iredell presiding,) delivered the same opinion, and Fries was convicted. When Fries was again tried, a new trial having been granted to him,-the same Court, then composed of Judge Chase and Judge Peters, delivered the following opinion: "That an insurrection or rising of any body of people within the United States, to attain by force or violence any object of a great public nature, or of public and general or national concern, it is a levying of war against the United States."

"That any such insurrection to resist or to prevent by force or violence the execution of any statute of the United States, under any pretence of its being unequal, burthensome, oppressive, or unconstitutional, is a levying of war against the United States, within the constitution."

Judge Iredell, in a charge to a Grand Jury, having in view the insurrection in Bucks and Northampton, in the state of

United States v. Frederick Hoxie.

Pennsylvania, thus expresses himself: "If the intention be to prevent by force of arms the execution of any act of Congress altogether, any forcible opposition calculated to carry that intention into effect, is levying of war against the United States."

The only occasion on which the Supreme Court of the United States has delivered any opinion on the doctrine of treason was, on the return of a habeas corpus, in the case of Bollman and Swartwout, who had been committed on a charge of that nature. "To constitute this crime," says the Court, "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."

"There must," says the Court, in another part of its opinion, "be an actual assemblage of men, for the purpose of executing a treasonable design." And again, "It is more safe, as well as more consonant to the principles of our constitution, that the crime of treason should not be extended, by construction, to doubtful cases."

Having now stated the principal decisions abroad and at home, on the subject before us, let us go back to the indictment, and the evidence in support of it, and see if it be possible to bring the prisoner's case within any of those that have been mentioned.

The offence laid, stripped of its artificial dress, and technical appearance, is nothing more than the forcible rescuing of a raft from the custody of a military guard placed over it by a Collector. It is impossible, to suppress the astonishment which is excited at the attempt which has been made to con

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