Alexandria daily advertiser. [volume] (Alexandria [Va.]) 1803-1808, 1807-09-30

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law. depends on theirs, and their gnllr
can ONLY be established 10 a prosecution A.
eainst themselves. Whether che adviser
Of This assemblsge be punishable with
death as principal OF as an accessory, ms
liability TO punishment depends ont the de-
gree Of guilt attached TO an act which has
beenperpelra,ed by Others, and which. Ais
be q criminal ACT, renders them guilty also
HE guilt therefore dePeuds on theirs,
aud their guilt cannot be legally establish q
ed in a prosecution against him.
The whole reason Of the law then rela.
tive TO the principal and accessory, 50 tar
al respects the order Of trial. seems TO ap.
NV ID full force TO acase OF treason COM
mi,ted by one-body of men in conspiracy
with Others who are absent.
If from reason We pass to authority, we
6nd it laid down by Hale; Foster, and.
East, in the mos. explicit terms, that the
conviction Of some one who has commit.
ted the treason must rrecede the trial OF
him who has advised or procured IL
This position is also maintained BY Leach
ia his notes on Hawkins, and is not, SO tar
as the court has discovered, any where
ccntradicted.
These authorities have been read and
commented ON at such length that 1t can
not be necessary for the court TO bring
them again into view. Il is the less neces.
sary because il is not understood that the
law is controveTled by the counsel tor vac
United States.
Il ia, however, contended, that the PR.
soner has waved his right to demand the
conviction of some one person who was
present asthc fact, BY pleading oshls ip-
die.ment.
Had Indictment even charged the pri-
sener according to the truth Of the case, the
court would feel some difficulty in deciding
that he had by implication waved his right to
demand a species of testimony essential to
his conviction. The COURTS not prepared to
say that the act which is to operate against
his rights, did not re quire that il should be
performed with a full knowledge its opera
tion--It would seem consonant to TIE usual
!. course of proceeding in othcrrespects In cri-
nlinal cases that the prisoner. should be in
formed that he had a right torefuse to- be tri-
ed until some person. VINO committed the .ace
should be convicted, and that he ought not to
be considered as waving the right TO demand
the record of conviction, unless with the full
knowledge Of that right he consented to be
tried. The court, however does not decide
whatthe law wouldbe IN such;a case. Il IS
unnecessary to decide il, because pleading to
an Indictment in which man is charged as
having committed an act, cannot be construed
to wave right which he would have possess
ed, had he been charged with having advised
the act. No person indicted as principal can
be expectedto say / am not a Principal, am
an accessory; | did not eommit only adiis-
ed the act.
The authority Of the English cases on tbs
subject depends IN great measure on the a.
doption of the common law doctrine Of access
serial treasens. If that doctrine be excluded
this branch of it may not be directly applica-
bic TO treasons committed within the Omitted
States. the crime ofadvising or procuring
a levying of war be within the constitutional
definition of treason, then lie who advises or
procures it must be indicted on the very fact,
and the question whether the treasonabeness
of the act may be decided in the frs .1stance,
in the trial Of. him who committed it will de-
pend uponth the treason, as it respects the law
of evidence, which produced the British deci7
slons with regard to the trial Of principal and
accessory, rather than on the positive autho-
rity oil these decisions,
This question is not essential in the present
case, because if that crime be within the con-
stitutional dehnitisn, it is an overt act of levy
ing war, and to producea conviction ought to
have been charged in the Indictment
The law Of the case being thus far settled,
what ought to be the decision ofthe court on
the present motion? Ought the court to set
and hear testimony WHICH cannot affect the
prisoner, Drought the court to arrest that
testimony On this question much has been
said-much that perhaps may be ascribed to
nisconception of the point really under con-