The enquirer. [volume] (Richmond, Va.) 1804-1815, 1807-09-05

III arms or IN ali thoie VINO take part IN the re-
bcllion or infiirrection by real open deed.
Hale in treatiue"n the fame fusieet puts ma.
ny Gales which Gall confitu.e evyiag of war,
without which no act can amount to tr.afon,
but he does not particularize The parts to be
performed by the different perfons concern
ed IN that war, which fhail be fufficient to FIX
on each the guilt Of levyng it.
Foiter fays "the Joining with rebels in an act
ot rebellion, or with enemies in acts of hohility
will make a man I. aitor." "Furniihing re-
bells or enemies with money, arms, ammunition
or other neceHaries will prima f:eie make man
a traitor"
Potter does not fay that he would be trail
tor under the words of the fatute independent
OF the legal rule which attaches the guilt of the
principal to an accefiary, nor that his treafon is
occafioned by that rule. In England this dif-
elimination need not be made except for the
Purpofe of framing the indictment, and there
fore in the Engfh books we do not perceive any
effort TO make it. Thus furrendering a cattle to
rebels, being in confsderacy with them is fad
by Hale 8, Foiter to be trearon under the claufe
of levying war, but whether it be levying war In
tact, or aiding thofe who levy it is not faid.-
Upon this point Backbone isnot more fatisfac-
tory. Although we may find among the
commentators upon treaioa enough to ia
tisfY the esquiry, what's fate of intern al war !!
them which would enable us to decide with
cearnefs whether pcrfors not in arms but tax
ing part in rebellion, could be fad to levy war
independent of that doctrine which attaches to
the acceFary the guilt of his principal.
1T in adjudged cafes this quellion has been ia
ken up and directly decided, the ourt has not
feen thoie cafes. The arguments which may be
drawn from the form of the indictment, though
itrong, is not concluiive., In the precedent
found in Treu,aine, Mary Speake, who was in
dieted for furniihing provifons to the party of
the Duke of Monmouth, is indicted for furnifl-
ing provilionS to thofe who were levying war,
not for levying war herielf. 1t may correctly
be argued, that had this ad amounted to levy
ing war, fhe would have been indicted for levy
ing war, and the furniihing of provifons would
have been laid as the overt act. The court felt
this when the precedent was produced. But
the argument, though trong, is not conClufive,
hecauie IN England, the enquiry whether ii,e
had become traitor by evying war, or by Civ
ing aid and comfort to thofe who were levying
war, was unimportant, and becaUic too it does
not appear from the indictment that ihe was &C.
tually concerned in the rebellion, that fhc be.
iunged to the rebel party, or was guilty of any
thing further than a criminal Ejaculation in fei.
ling them provi6ons.
1t is not deemed neceiTary TO trace the doc.
trne that in treafon all are principals to its
iource. It's origin is mof probably Gated cor
rettiy by Judge Tucker, in work, the merit
! of which is with plealure acknowledged. But
II a ipurious doctrine has been introduced into
the common law, and has for centuries been adj
mitted as genuine, it would require great har-
dihoood in a judge TO reject it. Accordingly.
we find thoie of the Engliih jurias who feemto
diiapprdve the principle, declaring that it ia now
too FIRMLY fettIed TO be ihakeH.
Il 20, -: q
fource for another reafon. The terms of the
contribution comprize no qneGion refpetling
principal and accefIary, 70 far as either may be
trn'y and in fatt faid to levy war: Whether in
England perion would be indicted in ex-
pre's terms for levying war, or for affiRing o.
thersin levying war, yet if in correct and legal
Language he can be faid to have levied war, and
if IT has never been decided that the act would
not amount to levying war, his cile may with.
out violent contribution be brought within the
letter and the plain meaning of the contribution.
In examining theie words the argument which
may be drawn from felonies, as for example
from mmrder, is not more Concluive. Murder
is the iingle act of killing with malice afore-
thought. But.war 10 complex operation COM
pefed of many parts, cooperating with each o.
ther. No one man or body of men can per-
form them ALI the war be of any continuance.
Although then in correct and in law language
he alone is faid TO have murdered another who
has perpstrated the fact of killing, or has been
preient aiding that fat, it does not follow that
he alone can have levied war who has borne
arms. al thofe who perform the various and
sirntisl military parts of proiccutiDg the war
which rut he ALIGNED To different perfons, NAV
with correctness and accuracy be faid to levy
war.
Taking this view Of the fubjea, il appears to
the c0urf, that 'hoie vino perform part in the
protccution ofthe war may correctly be faid to
levy war and "a commit treafon under the con-
fiiu'ioG. IL will be oofcrved, that this opinion
does not extend to tie cafe of perfon who
performs no act III the profecution of the war,
who couuiels and advfcs IT,, or who being en-.
gagged in the cnnlpitacy fails to perform his
part. Whether fuch perfons may be i0plicat-
cd by hC doctrine, :hat whatever would make
man an acceGary in ieloHy makes him prn-
eipil IN tresioD, or are excluded, becaufe that
doctdae is inap9'cable 70 the United States,
the con1itu,ion having declared that treafon
( ihal cnn6t only III lrvyihg war, aud having
made the proof of oyerf ais neceHary to con.
vi tti,G, is erection Of VAT importance which
It would be proper for the fuPreme court to
,k@ fit occaion to decide, but which an in
ieuor tribunal would not willingly determine
uGlel- the cafe before them fl0uld require it.
il o1y now he prc?rr to notice the opinion
OF the fuprealc court in the cafe Of the United
States agliIf Boiinlln and Sw1rtwout. Ii is
itil thar this 0p'rion in declaring that thoGe
Who dOuot bar arms may yet be entity oftrea-