If marching in a military array were alone a sufficient overt act of levying war, would not the court have said "that it was immaterial whether he marched into the city on a particular day and held it or not, because he did march with a great many persons in military array, and therefore levied war and was guilty of treason." This would have put it out of all dispute whatsoever, and have been decisive evidence of treason against him; because proof of any one overt act is sufficient to support an indictment for treason. But it is plain that the court never considered marching in military array as a sufficient overt act; there is not a vestige to support such evidence. His not being present when the city was taken was deemed of no importance. It is no where relied on in the arguments as worthy of consideration; because it is not necessary to prove an overt act on a particular day.

I have thought it material and proper for me to dilate on this point, lest this court might possibly be of opinion that assembling and marching in military array was sufficient to constitute an overt act. The house of lords adjourned to the chamber of parliament and came to a resolution to take the opinion of the judges on this question: "whether it is necessary that an overt act of high treason should be proved to have been committed on the particular day laid in the indictment." And the judges were all of opinion that it was not necessary; but" as evidence may be given of an overt act before the day, so it may be after the day specified in the indictment; for the day laid was circumstance and form only and not material in point of proof; and that this was the known and constant course of proceeding in trials." But there was not one expression of the court tending to shew, (what is so much relied on by the gentlemen on the other side) that being arrayed in a military manner amounted to treason. There was not a word to this effect except some suggestions of the counsel, but altogether unsupported by the court. There was no doubt on the subject, nor any reference to the judges. The marching into and holding the city from the king were deemed sufficient.

But Vaughan's case has been maintained by the gentlemen on the other side to prove that war might be levied without any actual violence done. The indictment in Vaughan's case ought to be considered as being for adhering to the king's enemies. The first count which was for that offence was principally relied on. The judgment in that case can never be considered as a decision, that violence is entirely unnecessary to levy war. It does not prove that war can be levied without the employment of force. It does not prove, as he contends, that the prosecutor may lay, that the accused marching in military array did levy war; but he must also state the overt act which

he committed. The indictment in that case stated acts done in the vessel called the "Loyal Clencartie." The overt act there laid seems to be considered by gentlemen (and without doubt erroneously) as an overt act of levying war. He went in an armed vessel on the high seas for the purpose of capturing vessels belonging to the British nation. They did attempt to capture one vessel; and superior force only prevented the attempt from being carried into complete effect. As that was an indictment for adhering to the king's enemies, which was proved by his cruising against the English, it cannot be considered as an authority for the purpose of proving that force is unnecessary to constitute treason in levying war.

Foster, p. 218. has been relied on for the same purpose. He says, that" 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. So cruising on the king's subjects under a French commission, France "being then at war with us," was held to be adhering to the king's enemies, though no other act of hostility was laid or proved; and he refers to Vaughan's case.

This distinction between the bellum levatum, and bellum percussum is no where established. He has no other authority on which to ground the principle. In Vaughan's case, there was an actual cruising in the vessel which he commanded under a commission from the French king, and an attempt to capture vessels of the king's subjects; and she was fitted out to destroy the king's ships.

"Listing and marching are sufficient overt acts without coming to a battle." If he mean an overt act of levying war, there is no authority whatever to support him; not a single case can be adduced. But if he mean an overt act of compassing the king's death, he may be correct. The very acceptance of a commission from the enemies of the king is an overt act. Writing a letter of intelligence to the king's enemies is also an overt act of compassing his death. Foster in page 220. referring to Vaughan's case confirms the doctrine and says "that if a subject of England maketh actual war on the king's allies engaged with him against the common enemy, it is adhering to the king's enemies, though no act of hostility is committed against him or his forces; because thereby the common enemy is strengthened and the king's hands are weakened."

Did the court in Vaughan's case require proof in support of the indictment, that Vaughan with certain individuals levied war? No: because that very indictment states the acts committed by Vaughan; in being on board the Loyal Clencartie, and cruising against the ships of Great Britain &c.

This therefore is the only authority of the kind. Foster is unsupported if he mean what they say he does; for Vaughan's case is always placed on the ground of adhering to the king's enemies. No man can make or levy war without actual violence. If he join against the allies of the king engaged with him against the same common enemy, though he does no act against the king's own authority, it is as injurious as levying war on the king: because against his allies, and weakens him by strengthening his enemies; yet the party would be indicted for adhering to the king's enemies.

East in his 1st vol. of Crown Law p. 123. states that Vaughan was considered as adhering to the king's enemies. "On the other hand, if the overt acts offered in evidence, and not laid in the indictment, be no direct proof of any of the overt acts charged, but merely go to strengthen the evidence or suspicion of some of those overt acts, by a collateral circumstance, such evidence cannot be admitted, notwithstanding the opinion of lord Hale to the contrary. As in the case of captain Vaughan who was indicted for adhering to the king's enemies on the high seas. The overt act laid was his cruising upon the king's subjects in a vessel called the Loyal Clencartie; and the counsel for the crown offered to give in evidence, that he had some time before, cut away the customhouse barge and had gone cruising in that vessel; but as that was no proof of his cruising in the Loyal Clencartie, the court rejected the evidence."

I cite this case only because East speaks of it as an indictment for adhering to the king's enemies; which may be done. without actual violence; whereas war cannot be levied without the use of some force.

A passage in 1 East p. 124. has also been supposed to prove that the employment of force is not necessary to constitute the crime of levying war, but that merely arraying in a hostile manner is sufficient. "If (says he) but one of several acts be well laid and proved, that is sufficient. And if it be laid with circumstances not necessary to constitute the act of high treason, they need not be proved, but may be rejected as surplusage. As in the case of treason in levying war, if the overt act be an arraying in a hostile manner and thereby killing divers of the king's subjects, if the arraying in a hostile manner be proved, that is sufficient without proof of the rest." He cites the authority of Foster p. 194. to support this position: that force is unnecessary to constitute the crime of treason in levying war. It is proper to see the authority cited in order to determine whether it justify the inference made from it. Foster in that page says, " and if divers acts are laid and but one proved it will be sufficient and the verdict must be for the crown

And therefore where divers overt acts are laid, and the indictment in point of form happeneth to be faulty with regard to some of them, the court will not quash it for those defects; because that would deprive the crown of the opportunity of proving the overt acts that are well laid." What is the decision here? That one act proved is sufficient; but there is nothing here said by Foster like declaring that going in a hostile array, without any act of violence, is sufficient to constitute the crime of levying treasonable war. And East does not distinguish between the treason of compassing the king's death (to which only this doctrine can apply) and other treasons. He refers to several other authorities, none of which confirm his position: that "arraying in a hostile manner," is sufficient to constitute a levying of war.

The first he refers to is 1 Hale, 122.; who has only the same general doctrine: that any overt act well laid and proved will be sufficient; and from whom East and others borrow it.

The next case he cites is Lowick's case, 4 State Trials, 718. If you will examine this authority, you will find it was for compassing the king's death; therefore it cannot apply.

CHIEF JUSTICE.-Does the indictment in that case only charge compassing the king's death? Does it not state a charge or an overt act of levying war?

Mr. MARTIN. It is only for compassing the king's death; but it is very special in stating several acts in support of the charge, and particularly the manner of consulting to meet and assassinate the king. He also refers to Layer's case, 6 St. Trials p. 229. That case was also for compassing the king's death; and one of the overt acts to support the charge was the publication in the county of Essex of a treasonable writing to excite the people to insurrection. It is manifest that those are cases of conspiring to kill the king. Inlisting soldiers, marching in military array, writing a letter, meeting to consult, and other acts of like kind, are overt acts of the treason of conspiring the death of the king. That doctrine is well understood in Great Britain. There is no idea more clear and distinct in that country, than that these are only acts of that species of treason which consists in compassing the king's death; and for want of this distinct idea a mistaken opinion has been taken up in America that inlisting men, assembling and marching in military array, are overt acts of treason, without examining the subject further or inquiring what kind of treason, or how such acts can amount to treason. But whatever construction be, and whatever local or extraordinary causes may have induced there, for the preservation of the lives of their kings or other

wise. I thank God we know nothing of such treasons in America; and I hope we never shall. Even in that country it has never been solemnly decided that treason in levying war could be committed without any force or violence. In every case where the indictment has been specifically for levying war, we have found the parties assembling and using violence. In the case of the king v. Messenger and others reported by Kellyng, force and violence were used by some of the parties, but not by others. The point came directly before the court on special verdicts; and the decisions principally turned upon it. Those who had committed acts of violence were adjudged guilty of treason; but the only two, who were not found to have committed any act of force or to have aided or assisted those who did, were acquitted.

Benstead's case, so much dwelt upon by Foster, is not unaccompanied by force. In consequence of certain unpopular measures supposed to have been adopted by the king in pursuance of the archbishop's advice as privy councellor, it was determined to compel the king to remove him from office; and the house of the archbishop was attacked by a rabble of some thousands in the day; and in the night of that day, Benstead the ringleader with a multitude to the number of 300 went in a warlike manner to Lambeth-house to surprise the archbishop. That was considered an act of levying war, because acts of violence were committed, and in opposition to the king's government. I find no where so bold a position advanced, as, that war may be levied without any force whatever.

[Here a few observations were made by the chief justice, which were uttered in too low a tone of voice to be distinctly heard. He was however understood to say that marching in military array, armed and in sufficient numbers to exhibit an appearance or posture of war or of a capacity to accomplish. their avowed object, if treasonable, would be an overt act of levying war; and that proof of one overt act of any kind of treason charged in the indictment would suffice to support it, though there were several overt acts of the same or different kinds of treason laid and not proved.]

Hale says in his 1st vol. p. 146. that holding the king's castles without force is not treason: "The bare detaining of the king's castles or ships seems no levying of war within this statute." The necessity of the use of force and violence to constitute a levying of war is farther illustrated by the authority of Foster p. 219. where he refers to Hale: "Holding a castle or fort against the king or his forces, if actual force be used in order to keep possession, is levying war." This shews that there must be force used to make it levying of war; as it must be inferred VOL. II.

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