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position, that arms or military weapons are unnecessary; and that the intention is the criterion. In the English books, not a single decision, not even an obiter dictum of a single judge can be found to shew, that military array is necessary where the treasonable intention can be otherwise proved.

I shall now proceed to the authorities of our own country. Judges Chase, Iredell and Peters expressly declare themselves of Foster's opinion. I beg leave to read a short passage from Judge Chase's charge to the jury on the trial of Fries. (Fries's Trial, p. 197.) "The court are of opinion, that military weapons (as guns and swords mentioned in the indictment) are not necessary to make such insurrection or rising amount to levying war, because numbers may supply the want of military weapons, and other instruments may effect the intended mischiet. The legal guilt of levying war may be incurred without the use of military weapons or military array."

I think I may now consider it as proven, that arms are not necessary to the constitution of treason either in England or this country. Since then no arms were necessary to make the assemblage on the island a treasonable assemblage, it is hardly necessary to notice Mr. Wickham's position, that the rifles, which are proven to have been in the hands of the men there, are not necessarily military weapons. I shall only remark, that I suspect that there may be yet those living in Great Britain, who remember the name of general Morgan, and who can bear witness, that a rifle in the hands of a backwoodsman, though even without a bayonet, is a military weapon emphatically, and as formidable a one too as a soldier need encounter. They were the best weapons for the purposes for which they were intended, such as scouting parties, picking the enemy's men from the bank of the river, repelling attacks on parties clearing obstructions, &c. But we are told, that if arms be not necessary, force is necessary to make an assemblage treasonable. Let us inquire if this be so.

Gentlemen contend, that marching from places of partial to a place of general rendezvous is not sufficient; there must be force to constituté treason. I say, that force is not requisite to constitute treason, either by reason or authority. Let us just examine it on the ground of reason. What reason can be assigned for requiring this force? Is it for the purpose of shewing what the intention of the assemblage is? If that be the object, there is no necessity for it; for the intention may be shewn by other acts.

The intention does not depend on the act. The object is proved by the assemblage itself. If there be an assemblage of men, whose treasonable intentions cannot be proved by any other

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means whatsoever than an overt act, then force may be necessary to be proved; but where the intentions of an assemblage can be proved to be treasonable, force is not necessary. The acts of coming together and forming the assemblage in pursu ance of the traitorous intention complete the treason. This be illustrated by the case of Purchase: neither in the commencement of the riot nor at pulling down any of the houses was he present. He took no part in the outrages of the night till late at the bonfire at Drury-lane. The rioters had destroyed many buildings before he joined them. He had no part in their intentions; for the circumstances excluded the possibility of it. He joined them just at the close of the riot, and he was drunk when he joined them. He encouraged them, when he did join them, to make resistance to the king's guards, and he assaulted their commander. He had taken no part before that in those riots and routs. There was no evidence that he had harboured any treasonable intention. There was no way therefore to manifest his intention but by some act; and though his guilt was far short of that of the others, yet as he joined them though at a late period in resisting the laws, and committed acts of violence himself, a majority of the judges thought he was involved in their guilt. In such cases the intention can only be proved by an external act. If it cannot be proved, it is as if it did not exist. Some act of force is therefore required, because there is no other way of shewing the intention but by the indications of acts of force, from which alone the intention is to be inferred. But force is never necessary to be proved when the intention can be proved by independent and distinct proof. But though force be required, the least act of force will suffice; and if we could have proved resistance to general Tupper by two witnesses, we should have proved a sufficient force for the gentlemen. But they would say still there was no act of force. What necessity is there for that? Would it prove any thing more than the mere intention? Is not intention otherwise abundantly proven? Would resistance to general Tupper have served to develop either the act or intention? Would it relate to the turpitude of the great design? or would it prove it to be pure? For what cause can the gentlemen require this force? The resistance to general Tupper would not have thrown one ray of light on the subject.

Mr. Lee says, that hard knocks are things we can all feel, yet it is equally true that an assemblage of men is an object we can all see. True it is, as the gentleman says, that cannons and small arms may be heard; and so may the disclosure of a treasonable plot. At last, the overt act which they require is but an appeal to the human senses; and the overt act which we have

proven is equally satisfactory to them. Why do they insist on calling in the sense of feeling to the sense of hearing? He may say, if we were to feel it, that we must also taste and smell it. Mr. Wickham indeed complains, that if you stop him short of actual force, you take away the locus pænitentiæ. I say, if you do not stop short of it, you take away the motive of repentance; for you offer the traitor victory and triumph, and it is not in their arms, that we are to expect from him repentance. But was there, sir, no opportunity for repentance in this case? We shall prove that the prisoner was for more than a year brooding over this treason. The ruin and desolation that he was about to bring upon this country must have been often before him. If ali love of his country were so far extinguished in his breast, that he could not forbear, if the downfal of liberty and the horrors of civil war gave no pang of remorse to his bosom, why, for his own sake, did he not repent? Why did he not remember Cromwell and the treason and fate of Cesar? Cromwell as bold and daring as himself and the miserable effects of his successful usurpation; the terrors that haunted and scourged him day and night, and blasted him even amidst the splendor of a palace. Cesar and Cromwell he did not forget; but he remembered them as objects of competition and rivalship; not to detest and abhor, but to envy, admire and emulate. Such was the kind of remorse which he felt at the idea of drenching his country in blood and substituting despotism for liberty; such the very promising disposition and temper for repentance, which alone he manifested.

Mr. Randolph wishes to know, how the line can be drawn between inlisting and striking a blow. The answer is obvious: At the point of the assemblage, where the courts of England and the highest court in this country have concurred in drawing it. A line strong and plain enough to be seen and known is drawn. Does reason, sir, require that you should wait until the blow be struck? If so, adieu to the law of treason and to the chance of punishment. The aspiring traitor has only to lay his plans, assemble his forces and strike no blow till he be in such power as to defy resistance. He understands the law of treason. He draws a line of demarcation for the purpose of keeping within the boundary of the law. He projects an enterprise of treason. He inlists men. He directs all the operations essential to its success from one end of the continent to the other; but he keeps himself within the pale of the law. He goes on continually acquiring accessions of strength, like a snow ball on the side of a mountain, till he becomes too large for resistance and sweeps every thing before him. He does every thing short of striking a blow. He advances till he gets to New-Orleans. He does not ha

zard the blow till he is completely ready; and when he does strike, it will be absolutely irresistible. Then what becomes of your constitution, your law of congress or your courts? He laughs them to scorn! Is this the way to discourage treason? Is it not the best way to excite and promote it? to insure it the most complete success? I conclude therefore that reason does not require force to constitute treason.

Let me now inquire, whether the law require it. But before I proceed, I beg leave to premise, that in the several cases on this subject, the word force is generally used figuratively, intended to signify the assembled body and not any deed of violence actually committed by it. Force, or an armed force usually spoken of, means not an act of violence but the power of doing it. We frequently call a body of men an armed force, because they are capable of using force. In this sense it was said, that Bonaparte was prepared to make war with the empire of Germany with a force of 300,000 men; that he was to enter Italy with a force of 70,000 men. Is not this an armed force before a blow was struck? Thus in Vaughan's case it is stated, that he came with an armed force; and in the opinion of the presiding judge of the court, in the motion to commit the prisoner in March last, we also find this word used in this figurative sense. After saying that it was clear, that an intention to commit treason is an offence entirely distinct from the actual commission of that crime, the judge proceeds: "War can only be levied by the employment of actual force; troops must be embodied, I men must be assembled to levy war." The troops then being embodied, the men being assembled, war is thereby levied; force is employed; not that a blow is actually struck, but that there is a body capable of using force, if they please to use it. Sir, as to the demand of actual violence, there is not in Great Britain a single case in which it has been adjudged, that force is an indispensable requisite, if the intention be otherwise manifest. All the authorities in that country concur in disclaiming it. They take the distinction between the bellum levatum and the bellum percussum. Thus Foster 218: "An assembly armed and arrayed in a warlike manner, for any treasonable purpose, is bellum levatum though not percussum." Listing and marching are sufficient overt acts without coming to a battle or action. East, vol. 1. p. 67. repeats this doctrine and cites various cases in support of it. Salkeld reports, "there may be levying war without actual fighting." Same case, 5 State Trials, 37. there were two counts in the indictment against captain Vaughan and evidence as to both; and it was explicitly declared by the court, that the bellum percussum was unnecessary. No English authority requires it. The assemblage and clear evidence of the treasona

ble design have always been held sufficient. The case in Kelung, p. 75. on which the gentleman so much relies to prove the necessity of force, is one of those cases in which the treasonable intent is only manifested by the employment of force and the extent to which it is carried.

It was the case of a riot: a sudden ebullition of popular passion, preceded by no concert, no arrangement, and a case therefore, in which the intent was unsusceptible of proof, except by the acts of the mob. It was a case, I will add, in which any kind of force would not have been sufficient to make it treason; for if they had stopped with pulling down one bawdy house or opening one prison to let out a favourite prisoner, that would have been a riot merely. They continued however together and in action for two days, and shewed by the extent and nature of the violence which they practised, that their intent was general and universal. From such a case surely nothing was to be inferred which will fairly apply to a case so different as that at bar: a case in which there was a previous concert and arrangement, and a case in which the quo animo, the criterion of the crime is susceptible of proof, independent of the assemblage.

Let us come now to our own country and see if our adjudications require actual force. Before I proceed to the examination of Fries's case, let me remind you of an observation of Mr. Randolph's, equally elegant and correct: "An elementary principle resulting from the circumstances of a particular case, and to be found in that case only, should never be applied except to a case parallel in its circumstances." Nothing can be more just than this remark; and it is by violating the rule which it contains, that so much jarring, so much irreconcilable discord, so much Babylonian confusion is seen to exist among our cases. With this reflection let us come to the trial of Fries. What were the circumstances of that case? There had been actual violence; it was also a disorganized and disorderly riot, and the reasonings of the British cases applied to its character. But as there had been violence in that case (they had marched and destroyed general Neville's house) and the judge in charging the jury was giving a description adapted to the case at bar, what was more natural than for him to introduce that feature of the case into his description? It will be found that judge Chase considers the case of Fries as a riot, and reasons upon it in that point of view, applying to it all the English doctrine of riot, where violence, as before remarked, is the only evidence of treasonable intent. But if each dictum of the judge in delivering that charge is to be considered as an abstract truth, it will be easy to find in it the clearest indications of his opinion, that