Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1807-09-05
Coke does no, ave complete dsfnition


surrection by real opcn deed
Hale, in treating On the same subject puts
'nany cases which SHALL constitute i lc,ying
If war, without which no act can amount
20 treason, but he dies not particulaTiss the
parts to be pc rfcrnIed by the different per-
sons concerned in that war, which shall
be sufficient to fix on each the guilt o. le-
wing il.
Foster says "the joining with rebels in
81 act Of rebellion, or with enemies in acts
of hostility, will make a man traitor. -
" Furnishing rebels or eueWics with mo-
ney, arms, ammunition CT other nccesAarie
viii frima iacic make d uian a Uaitcr."
Foster does not say that he would be a
traitor under the words of the statute indie.
pendent Of the legal rule WI oh attaches
the quit of the principal to- an accessory.
nor that his treason Is cccasioned by TINT
rule. In England, THIS Discrimination need
not be made except FOR the purIfose oi fra
ming the Indictment, and therefore III the
English books we do not perceive any ct
fort to make il. Thus, surreudering cas-.
tie to rebels being in confederacy with Them
is said by Hale and Foster to be TREASON un-
der the clause OF ievying war, but whe;htt
ii be levyipg war iii fact, or aidmg those
who levy it is not said. Upon This point.
Though We may find amnng the commen-
,ators upon treason enough to satisfy the
enquiry what is Il state of internal war :?
Yet no precise infcrmati,n can he acouir-
ed from them which would enable us TO de
eide with clearrcss whether persons not ~,
arms, hut taking part in rebellion, ccu,G
be said 20 levy war independent q: that doc.
trine which attaches TO the accessory the
! guilt of his principal
If in adjudged Cases this question has
been taken up and directly decided, the
| c. UT has rot seen those cases. The -aTgu-
Incnts which my be drawn from TIT. form
IF the indictment, though strong, is not con-
cfe>ive In the precedent fouMd in Tue
maine, Mary Speakc, who was indicted for
furnishing provisions 10 the party Of the
duke of Monmouth, is indicted for furnish
ing provisions TO those who were loyying
war, not for levyIng war herself. J: may
correctly be argued, that had this amount.
| ed 10 levyirg war, she would have been in
dioted for levying war, and the furnishing
provisions would have been laid as the o.
vert act. The court felt this when the pre-
cedent was produced. But the argument,
! hnugh strong, is not conclusive, because la
England, the enquiry whether size had be-
come a traitor BY lcvving wax, or by giving
aid and comfort to those who were licvying
war, was unimpnrtant x because too, it docs
not appear from the indictment that she
was actually concerned in the rebellion,
that she belonged to the rebel party, or was
guilty at any thing iurther than criminal
speculation in selling them provisions.
1t is not deemed necessary 10 trace the
doctrine that in treason al are principals
TO it's source. Its origin is most probably
stated correctly by judge Tucker, in aworI;,
the merit of VIII Oh is with pleasure ac-
knowledged. But if a spurious doctrine has
been introduced into the common law, and
has fer centuries been admiite d AS genuine
IT would require great hardihood in a judge
TO reject il. Accordingly, We find those of
The English jurists who seem to disapprovc
the principle, declaring that it is now too
firmly settled t. be shaken.
| 1t is unnecessary torace this doctrine to
its source for another reason. The terms
of the constitution comprise no question re-
| speeding principal and accessory so far as
either may be truly and in fact said 70 levy
war: whether in England Il pers9n would
| be indicted in express terms for lew Ing
war, or for assisting others in levying war,
yet if in correct and legal language he can
be said to have levied war, and if it has
never been decided that the act would not
amount to levying war, his case may with
cut violent construction be brought within
the letter and plain meaning Of the consti-
tuition.
In examining these words the argument
which may be drawn from felonies, as for
example, from murder, isnot more conclu-
s've. Murder is the single act of killing
with malice aforcthought. But war is
complex operation composed of many parts,
cooperating with each other. No one man
or body of men can perform them all il the
war he of any continuance Although then
in correct and in law language, he alone is
said to have murdered another who has
lperpetrated the fact Of killing, or has been
present aiding thar fact, IL does not follow
that be alone can have levied war who has
borne arms. All those vino perform the
various and essential military parts Of pro-
scouting the war which must he assigned to
different persons may with correctness and
accuracy be said TO levy war.
Taking this view of the subject it appears
to the court, that those who perform part
in the prosecution Of the war may correct.
ly be said to levy war and to commit trea-
son under the constitution. II will he OBJ
served, that this opinion does not extend TO
The case Of person who performs no act
in thu prosecution Of the war, who cCun-
sells and advises it, or who being engaged IN
the conspiracy fails to perform his part
Whether such persons may be implicated
by the doctrine, that whatever would make
a man an accessory IN felony, makes him a