Year: 1865

consummated.


They further contended that, if a princi-
pal in the crime of treason consummated at
the Island, he must be considered as having
been constIudtcety present. and, therefore,
was properly charged in the indictment as
if actually present.


These were the principal points discuss
ed, at great length and with consummate
! ability, in Burrs case. That some of the
same points may be raised on the trial of
Davis in this District is manifest. How
far the ruling of the Court upon them will
tend to sustain or to defeat such prose
cution will be seen from what follows:


That which, of itself, would have proved
fatal to the prosecution in Burrs case was
the want of sufficient evidence to prove
that aay tcar acas leUied on Blennerhassett's
Island. After Chief Justice Marshall had
defined what, in the opinion of the Court,
was necessary to constitute a levying Of
war; Mr.. Hay, the United States Attorney,
frankly admitted that the evidence of the
transactions on Blennerhassett's Island did
not come up to the constitutional crime of
levying war;" as defined by the Court
This was, of course, fatal to the prosecu-
ton, even if all the other points raised and
|
its favor No such difficulty can arise
however, on the trial of Davis in this Dis
trict, inasmuch as bloody battle was ac-
tually fought within the bounds of the Dis
trict, in July, 1864.


| Chief Justice Marshall, in Burrs case
carefully abstained from committing him.
self conclusively on the question whether
the common-law rule that whatever will
render man an accessory in felony will
make him a princip pal in treason was in
force as a part of the law of treason of this
country; but at the same time he very
clearly indicated his opinion that it was
not. He adhered, however, to the position
taken in the case of Bollman and Swart
won't, that when war is actually levied, for
a reasonable purpose, any one who, being
leagued in the general conspiracy, performs
any overt act constituting part therein,
however minute or however remote form
the scene of action" is guilty as a princi-
pal traitor. And he gave this illustration
of what character of auxiliary acts would,
III his opinion, constitute " a part in war
levied at remote place


There is no difficulty in affirming that there
must be awar or the crime of levying it cannot ex
ist but there would often be considerable difficult





involve the person committing it in the guilt and
in the fact oflevying If, for example, an az
my shouldbe actually raised for the avowed pur-
pose of carrying on open war against the United
| States and subverting their Government the point
must be weighed very deliberately, before a Judge
would venture to decide that an overt act of levy
ing war had not been committed by commSsary
of purchases, who never saw the army, but who
knowing its object, and leaguing himself with the
rebels, supplied that army with provisions or, by
| a recruiting officer holding a commission III the
rebel service, who, though never in camp, eXecu-
ted the particular duty assigned to him"


If such acts as are here mentioned per-
formed at a place remote from the scene
of actual war, will implcate the person
performing them in the guilt and in the
fact of lcvying war;" it may be safely as
sumed that Sufficient evidence can be OBJ
tanned to implicate Davis as principal ac-
tor in the war prosecuted i'll this District
in July, 1864.


Chief Justice Marshall held however, in
Burr's case, that even if an unquestionable
act of war had been committed on Blenner-
hassett's Island, and if Burr had performed,
i'll Kentucky, or in any other place remote
from the scene of action" overt acts con-
stituting part in that war, still the evi-
dence Of his auxiliary acts would not have
been admissible under the indictment, be-
cause it charged him with being personally
present at the Island He did not assent
to the doctrine coEtended for by the prose
cution, that Burr could be considered con-
structirely present, when, in fact he was
some two huadred miles distant from the
place where the war was alleged to have
been levied.


He therefore held that in order to let in
| nf
formed at a great distance from the scene
of hostile demonstrations, the indictment
should have been special, showing that he
was not actually present, and specifying
the auxiliary acts which implicated him in
the crime Of those who actually appeared
in arms against the Government. To OBJ
viate' this difficulty, encountered by the
prosecution in Burr'S case, it would only
be necessary to frame the indictment i'll
accordance with the views expressed by
the court.


Chief Justice Marshal held in Burr's
case, upon the authority of English text
books and adjudications, that where an ac.
cessory in treason becomes principal
solely in virture of the common law rule
that in treason are all principals" his
guilt can only be legally established by a
record of the conviction of some one or more
of the immediate actors who were present
at the place where the crime was consum
mated. But if Davis can be implicated as
principal in the crime of treason consum
mated in this District in July last, indepel
2 dentIy of said c0mm0n-laeC rule, it is clean
? that the objection that no one of the imme
diate actors had been previously convicted
would not be tenable in his case. And il
has already been shown that if implicated
at ALL it is not. in virtue of said common
law rule.


We think it has been sufficiently shown
by the foregoing that the points ruled a
gainst the prosecution in Burrs case need
/. not embarrass the prosecution in the case
f of Davis should he be put upon his trial
for treason in this District. The proof OF
, an actual levying of war in the District is
ample 1t will certainly not be very diff
, cult to prove that Davis performed, at Rich
mond, acts Immediately anciliary to sale
war prosecuted in the District; such acts
as, within the meaning of the Supreme
Court, in the case of Bollman and Swart
wout, constituted a part in said war. The
: Indictment can be so framed as to obviatC
t the objection which existed in Burrs case