Page:United States Reports, Volume 2.djvu/357

 Cmcurr Coeur, Pmigwloauia Diftrift. ggt power a mob may cafily be converted into a confpiracy; and a rygs, riot aggravated into High Treafon. Such, however, is not the yy`; fenfe which Congrefs has exprelfed upon this very fubjeé}; for, if a bare oppofition to the execution of a law can be conlidered as conltituting a traiterous offence, as levying war againit the government, it mult be equally fo, in relation to every other law, as well as in relation to the excife law; and in relation to the Marfhall of a Court, as much as in relation to the Supervifor of a Diflriél: And yet, in the Penal Code of the United States, the offence of wilfully obllruéling, refilling, or oppofing, any oflicer, in fcrving, or attempting to ferve any proeefs, is confi- dered and punifhed merely as a mifdemeancr. (r Vol. Swfir Edit. p. 1og.jZ 22.) Let it be granted, that to compel Congrefs to repeal a law, by violence, or intimidation, is treafon (and the Englyb authorities rightly conllrued, claim no greater con- . ceflion) it does not follow, that refilling the execution of a law, ‘ or attempting to coerce an ollicer into the refignarion of his commiflion, will amount to the fame offence. Let it be grant- ed, alfo, that an infurreélion, for the avowed purpofe of {ups prefling all the excife oflices in the United States, may be con- llrued into an ae} of levying war againfl; the government (and the Englylv authorities lpealt exprefsly of the univerfality of the obje€t, as an eliential eharaéteriflie of. this fpecies of treafon) it does not follow that an attempt to obli e one oflieer to refign, or to fupprefs all the ollices in one diftrigl, will be a crime of the fame denomination. r .Hal. P. C. tg;. Nor can another _ doélrine, urged in fupport of the profecution, be fairly recog- nized. It is laid down in all the books, which have been cited, · it is admitted by the attorney general, that a bare confpiracy to levy war, does not amount to treafon; but, it is contended, that if, at any time afterwards, a parr of the confpirators lhould execute the plot, the whole of them will be involved in the guilt and punifhment. Thus, no opportunity is left for repentance; the motives which rellrain the abfentees from attending at the fcene of aéftion, however pure, can furnifh no exeufe ;——ancl they_are doomed to anfwer for the conduit of others, which they may, in faét, difapprove, and which they cannot, in any de- ` gree, eontroul. The llate of the evidence, however, renders it unavoidable, that this ground lhould be taken; for, unlefs the proceedings at Caun5¢’.r Fort and at Gen. Nc·viIl¢·’:l1oul`e can be fo combined and interwoven as to form one aftion, there are not two witneffes to prove that the prifoner was at the lat—. ter place; and the eonduft at the former, could only amount,. under the niofl rigid eonflruflion, to a confpiracy to levy war, not to an aélual levying of war againfl the government. » With the neceflity for two witnelics to an overt afi of trcafon, it is not in the power of judges or juries to difpetrfe ;—it is a fhicld from

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