(

the crime as to him; and a majority of the court is of opinion, that the conversation of Mr. Swartwout affords no sufficient proof of such assembling."

We have been told, that the assemblage with the treasonable intent would amount to levying war, would complete the crime of levying war; here in variant language, but language equally as strong if not stronger, we are told, that if the treasonable intent be carried into execution-How? by deeds of violence and force? No, but by an open assemblage of men for that treasonable purpose, this crime is consummated. Not that by such assemblage the crime is in an incipient stage; not that it is advancing to maturity; but that it is consummated. To remove all possibility of doubt the court then begins to consider the subject analytically: "The prisoner stated, that colonel Burr, with the support of a powerful association extending from New-York to New-Orleans, was levying an armed body of seven thousand men from the state of New-York and the western states and territories with a view to carry an expedition to the Mexican provinces."

"That the association, whatever may be its purpose, is not treason, has been already stated. That levying an army may or may not be treason, and that this depends on the intention with which it is levied and on the point to which the parties have advanced, has been also stated. The mere inlisting of men without assembling them is not levying war. The question then is, whether this evidence prove colonel Burr to have advanced so far in levying an army as actually to have assembled them." Here again it is clear, that if the case have gone so far as that the men have been assembled, the crime in the opinion of the court is complete.

Proceeding with the analysis the court says, "It cannot be necessary that the whole army should be assembled, 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 this 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 particular words used by Mr. Swartwout are, that colonel Burr was levying an armed body of seven thousand men. If the term levying in this place imports, that they were assembled, then such fact would amount, if the intention be against the United States, to levying war. If it barely imports,

that he was inlisting or engaging them in his service, the fact would not amount to levying war.

"It is therefore the opinion of a majority of the court, that in the case of Samuel Swartwout, there is not sufficient evidence of his levying war against the United States to justify his commitment on the charge of treason."

After language so clear and unequivocal, I should feel that I was insulting the understanding of the court, if I were to press the inquiry, whether deeds of violence be necessary to constitute the treason of levying war against the United States. So far from deeds of violence, the court does not even require the assemblage of the whole force; but expressly declares, that the mere marching of individuals from a place of partial to a place of general rendezvous is such an assemblage as would amount to levying war. Our court in this case has clearly maintained the line of demarcation acknowledged by the British courts between the bellum levatum and the bellum percussum. Is there any man in North-America capable of understanding the subject, who, after reading this opinion, can believe, that the court thought more than an assemblage with a traitorous intention necessary to constitute treason? Can any man believe, that the court, after these repeated and explicit definitions, could think force necessary? If the court had thought force essential to the constitution of treason can it be believed, that with its powers of discrimination, it would have omitted to mention so important an ingredient in the composition of treason? I should have supposed, that after such an investigation of this subject, the analysis of treason would have been complete; and that after the supreme court had so often, so clearly and (though in variant expressions) so explicitly stated, that an assemblage of men with a treasonable design constituted and completed the crime of treason, nothing more would be deemed necessary. But the gentleman has taken a distinction between actual and potential force; and he says, that if the former be not necessary, the latter at least is; and by potential force he means intimidation. Let us examine whether this be a sound distinction as applied to this case. To illustrate his meaning still more distinctly he puts this case: Suppose a body of men assemble in the country in great numbers and march into this town for the purpose of attacking the capitol and seizing the public arms. The people of Richmond intimidated by them, because in such numbers, withdraw and make no resistance. This, he says, is potential force. The force here meant is applied not to the body but the mind. This force in that case is complete for the purpose which the traitors have in view.

To the requisition of this force I have two answers to make:

First, that neither the law of England nor the supreme court of this country requires any such thing. I need not repeat the authorities upon this subject. The passages which I have recently read from the decision of the supreme court are fresh upon your memory; and you know that they do not even insinuate such an idea, but repeatedly declare the crime to be completed and consummated by the bare assemblage for a treasonable purpose.`

My second answer to the requisition of force is, that if it be necessary, and if I understand what is meant by it, it does exist in the case at bar. Let us examine what is meant by potential force. In the case put by the gentleman of a multitude marching to attack the capitol, and the people of the town standing aloof in apprehension and alarm, what is the force which operates, not hard knocks confessedly, but the excitement of fear and apprehension. Suppose however that the townspeople, instead of being frightened into submission, had been excited by apprehensions for their capitol and themselves to take arms for their defence, the same affection of the mind would still be in operation, though in a different degree. It would still be apprehension for their safety which would urge them to their defence. In this case the approaching body although not successful has had its effect. It has compelled the town to arm in opposition to it. Would not this be completely the exertion of potential force? Would not the town have been forced to its defence? and as the force which produced that effect was not actual, must it not have been potential? If the town in this case thus compelled to arm in its defence should march out and rout the approaching body without a blow on either side, and seize and destroy their baggage wagons, I ask whether this approaching body formed of citizens would not be traitors? My reason and judgment tell me, that the force then acting on the inhabitants of this town, the alarm which made them fly to arms is potential force; and that those who had excited this species of force upon the town would be traitors even according to Mr. Wickham's conception. Apply this doctrine to the case before the court. I ask whether the assemblage on Blannerhassett's island did not exert this species of potential force on the surrounding country? Did not Tyler and his party and those with them on the island put that country into a state of perfect consternation? What was it that urged the state government of Ohio to send a body of men to take this party and seize their boats? What induced the legislature of that state to deliberate with closed doors? Was it not a well founded alarm and apprehension of the objects of this assemblage? What was it that caused the militia of Wood county to be put in motion and marched to the island? The same mentad affection, the same potential force, the same alarm and ap

prehension which had acted on the government of Ohio. What was it when this assemblage fled from the island and advanced down the river gathering, like a snow ball on the side of a mountain, magnitude and momentum as it rolled along? What was it that threw New-Orleans into dismay and consternation and produced the movement of the American army in that quarter for its defence? This was the very quarter where the exertion of potential force was most expected. Sir, this terror arose from the designs of the prisoner and his party: designs which we shall prove upon them if permitted. It was fear acting on the minds of the people. They were alarmed and afraid of the division of the country, the erection of an independent empire and the establishment of despotism. Here actually was potential force: intimidation from visible and apprehended numbers producing the same effect as real force. And contemptible in point of numbers as the party was, the United States had not a garrison on the river nor even in New-Orleans, in the then temper of the city, capable of resisting the designs of the prisoner. All this we are prepared to establish if the evidence shall go on.

Upon the whole, sir, if potential force be required, we are ready to prove in this case, that the party by acting on the apprehensions and fears of the people produced the same effects that the exertion of actual force could have done. And I believe it is by this time perfectly clear, that the assemblage on the island had every character and property which either law or reason require to constitute an overt act of levying war.

But suppose I am wrong in all this argument, and that the court should be of opinion that actual force is necessary to constitute an overt act of treason, and that the assemblage on the island was insufficient for that purpose, will you arrest the evidence? To whom does it belong to decide, whether there have been an overt act or not? An application of this sort was made once before. What did you yourself decide then upon this subject?"Levying of war is a fact which must be decided by a jury. The court may give general instructions on this as any other question brought before it, but the jury must decide upon it as compounded of fact and law. Two assemblages of men not unlike in appearance possibly may be, the one treasonable, the other innocent. If therefore the fact exhibited to the court and jury should in the opinion of the court not amount to the act of levying war, the court could not stop the prosecution, but must permit the counsel for the United States to proceed to shew the intention of the fact, in order to enable the jury to decide upon the fact coupled with the intention."

And now you are called upon again to stop the proceedings, because the assemblage on the island committed no act of force, and was not an act of treason. And would you stop the trial because you should think that an overt act is not proved? Is it not the exclusive province of the jury to decide whether an overt act of levying war have been committed? Counsel may address to the court what motion they may please, but the jury have a right to decide for themselves. This shews the absolute inutility of deciding on this motion now. Will you undertake to decide, on one half or one fourth of the evidence, that there has been no overt act committed? The overt act is a fact compounded of intention and act, and yet you are called on to take the decision out of their hands! In strict unison with the opinion of the court, just referred to, is the English law: 1 Hale's Pleas of the Crown and 1 East, p. 67. [which see before.] This court then having itself decided, that the question, whether there have been an overt act or not, belongs essentially to the jury, it is strange that the prisoner should persist in pressing it on the court. What does he mean by calling on the court to decide on the fact of levying war? Have you the power sir? I should like to know where the authority can be found to prove that you have it. And suppose the court thinks it has this power and should exert it, what will be the consequences? Will it not take away from the jury their acknowledged right of deciding on facts? But the anxious perseverance of the prisoner in this course certainly implies a reflection either on the jury or the court: it implies either that the jury will not do him justice or that the court will do him more than justice. If he believed the jury would do him justice, and wished nothing more, he would be content to leave his case to them. If he believe they would not do him justice, and he therefore tries to force his cause before the court, whether it will or no, I may truly say, that he exhibits a phenomenon unprecedented upon this earth: a man flying from a jury of his peers to take refuge under the wings of the court! Sir, I can never think so illy of my countrymen as to believe, that innocence need fly from them; nor will my respect for the court permit me for a moment to apprehend that it will invade the peculiar and acknowledged province of the jury. This court well knows that my respect for its members, as private gentlemen and officially, is too great to apprehend that remarks of a general nature will be applied to them. But if at this period, when the bench is so distinguished by intellectual power and superior illumination, a precedent be set, by which the great fact in trial for life and death shall be wrested from the jury and decided by the bench, what use may not be made of it hereafter? In the fluctuations of party, VOL. II.

Q