The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-01-16


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preme Court had adopted the whole doctrine Of
the English books on the subject OF accessories
to treason. But certainly, such Is not the fact
Those only who perform q part and who are
leagued In the conspiracy. are declared TO be
traitors To complete the definition. both cir
cumstances must concur. They must perform
part which will furnish the overt acti aud they
must be 'leaeued in the conspiracy The person
who comes within this description, in the opinion
OF the Court, levIes war;
The Chief Justice further commented on the
opinion OF the Supreme Court which he had 80
recently drawn up. and extracted from 1t the
proposition that, where body OF menare assem-
bled for the purpose of making war against the
Government and are In condition to make that
war, the assemblage Is an act of levying war,
and, therefore neither arms nor application OF
force or vioence'to sensible objects are mdis.
pensablY necessary to constitute that offense.
These preliminary and side points disposed of,
Judge Marshall came to the pivot of the ques-
ton submitted, which was, whether an indict-
ment charging Burr with levyinR war on Blen-
nerhassetts Island, and containing no overt
act, could be supported, and jurisdiction OF the
Circuit Court in Virginia sustained by proof
that war was levied at that place by other per
sons, in the absence of the prisoner in another
circuit, even admitting those persons to be con-
nected with him in one common conspiracy.
1t will be noted how completely the inquiry
covers the case of jefferson Davis. That IS 10
say, could indictments respectively charging
DAVIS with levying war, either in the District OF
Columbia, Maryland, or Pennsylvania, and con.
tanning no other overt acts, be supported, and
the jurisdiction OF the Federal courtsfn either of
those circuits supported, by proof that war was
levied in those places by an army under general
direction Of Davis, who renamed all the while
in Richmond.
No analysis can do justice to the keen logic
and comprehensive grasp with which the ChieI
Justice reached conclusion in the negative, and
the opinion IS too long for publication ID 1ull.
We can only give the concluding sentences OF
this able judicial exposition of the American law
oil treason: -
The present indictment charges the prsener with
levylng war against the United States, and alleges
overt act of levying war. That overt act must
be proved according to the maadates OF Ahe Constr
tuition and OF the act of Congress, by two witnesses
1t is not proved by single witness The presence oil
the accused has been stated to be an essential COM
ponent part of the overt act in this Indictment,
uniess the common law principle respecting access
should render 1t unnecessary; and there is not
only witness who has proved his actual OF legal
presence but The act of hrs absence is not contro-
verted. The counsel tor the prosecution offer to
give III evidence subsequent transactions at differ
ent place and IN different state, IN order to prove
-what2 The overt act laid i'll the indictment that
the prisoner was one of those who assembled at
is is well known that such testimony is not
competent to establish such a tact. The Constitu'
should be established bv two witnesses not
by The establishment lof other facts from
Will ich The july might reason to this fact
II G testimony, then, Is not relevant Ii it can be
introduced IL is in the character Of corrobora-
tive or confirmatary testimony, after the overt act
has been proved Dy two witnesses, IN such manner
that the question OF iact ought 10 be left with the
jury. The CONCLUSION that IN tins s:nte of things no
testimony be admsslb e. is so lneYableithat the
counsel for the UnIted States could not resist it.
DO not understand them to deny that If the overt
act be not proved by two witnesses SO as to be sub
mltted to the jurY all her testimony must be Irrele
want because no other testimony can prove the act
Now, an assemblage on Blennerhassetts Island is
proved by the requisite number OF witnesses; aud
the Court mig hit nit 1t 10 the jury whether that
assemblage amounted to the levyng OF war; but the
presence of the accused at that assemblage being
nowhere Alleged except in the indictment the overt
act s not proved b, single witness; and, of conse
quence, all other testimony must be Irrelevant.
The only difference tetween this motion as made
ana the motion in the form which the counsel for
the United states would admit to be regular is this:
it is not general 1or the rejection of all testimony.
1t mis- hit be particular with respect to each witness
as aaduced. But can this be wished! Or can it be
deemed necessary? If enough be proved to show
that the indictment cannot be supported, and that
testimony, unless it be OF that description which
the attorney for the UNI ed States declares himself
not to possess, can be relevant, why should ques
ton be taken on each witnessY LID -it.glyf-,lI t..
The opinion of this court on the order OF testimony
has frequently been adverted to us deciding this
question against the notion. ...l. - 4r
Ii q contradiction between the two opinions exist,
the courr cannot perceive 1t. 1t sald that levy
ing war is an act compounded OF law and lact, Of
which the jury aided by the court must judge. 10
! that declaration the court still adheres.
1t was sald that if the overt act were not proved
by two witnesses, no testimony in its nature cor.
roborative or cOntirmatory was admissible or could
From that declaration there is certainly no de.
parture. 1t has been asked IN alusion to the
] present case if general commanding an army
should detach troops for distant service would the
I men composing that detachment be traitors and
! would the COMMANDER in-chief escape punishnentr
Let the opinion which has been given answer this
question. Appearing at the head OF an army would,
according to this opinion be overt act in leyylng
| war. De.aching q military corps for military
/ purposes, must also be an overt act OF Ievylng
war. 1t IS not pretended that he would not be pun
shable for these IL is only saId that he may be
tried and convicted on his own acts, IN the State
where those acts were committed not on the acts OF
! Others in the State where those Others acted DOL.
| We are at a loss to understand how any fper-
/ son of learning and ability" familiar with the
| doctrines of criminal law expounded by Federal
| jurisdiction OF the Circuit Courts could claim
that Jefferson Davis can be legally convicted o.
treason in every judicial district into which his
rance should prevail, and that such uninformed
| people should be called learned and able-bul
! so it is. .. 80